Common use of Payment of Earnout Consideration Clause in Contracts

Payment of Earnout Consideration. (i) Within ninety days after the third anniversary of the Effective Date, OHM shall determine the Average Operating Income, subject to review by OHM's accountants (the "Average Operating Income Calculation"). Within three business days after OHM's receipt of the Average Operating Income Calculation, OHM shall deliver such calculation to each of the Shareholders for review. (ii) Unless a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), which for purposes of this Section 4.4 shall include such Shareholder's estate, if any, or guardian, in the case of disability, gives the Company written notice of their objection to the Average Operating Income Calculation, which notice shall include the basis of the Shareholders' objection in reasonable detail ("Notice of Objection"), within 30 calendar days after receiving the Average Operating Income Calculation (the "Objection Period"), the Average Operating Income Calculation shall be final, conclusive and binding on OHM and each of the Shareholders. (iii) If a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration) deliver a Notice of Objection within the Objection Period, OHM and the Shareholders shall use reasonable efforts to resolve all disputes regarding objections set forth in the Notice of Objection, If OHM and the Shareholders are not able to resolve all disputes regarding the Shareholders' objections set forth in the Notice of Objection within 14 calendar days after delivery to OHM of the Notice of Objection, the remaining disputed items shall be submitted for final resolution to an independent certified public accounting firm selected by mutual agreement of OHM, on the one hand, and the Shareholders, on the other hand, or if OHM and the Shareholders are unable to agree upon such accounting firm within 20 calendar days after the delivery of a Notice of Objection, OHM, on the one hand, and the Shareholders, on the other hand, shall promptly instruct their respective firms of independent certified public accountants to select, within five business days thereafter, a third independent certified public accounting firm and only the disputed items shall be submitted to such independent certified public accounting firm (the "Independent Accountants"), After offering OHM and OHM's representatives and the Shareholders and the Shareholders' representatives the opportunity to present their positions as to the disputed items, which opportunity shall not extend for more than 10 calendar days after the Independent Accountants have been selected, the Independent Accountants shall deliver a written report resolving the disputed items submitted for resolution and setting forth the basis for such resolution within 30 calendar days after OHM and the Shareholders have presented their positions as to the disputed items. The resolution of the Independent Accountants shall be final, conclusive and binding upon OHM and each of the Shareholders and shall be reflected in any necessary revisions to the Average Operating Income Calculation. Notwithstanding anything in this Agreement to the contrary, the scope of the Independent Accountants' review of any dispute between OHM and the Shareholders regarding the Average Operating Income Calculation shall be limited solely to the resolution of the Shareholders' objections that are not resolved prior to selection of the Independent Accountants and as are set forth in the Notice of Objection. (iv) One-half of the fees, costs and expenses of the Independent Accountants for services rendered pursuant to Section 4.4(a) shall be paid by the Shareholders and one-half of such fees, costs and expenses shall be paid by OHM. (b) If no Notice of Objection is timely delivered by the Shareholders, OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the earlier of (i) the expiration of the Objection Period and (ii) the date of delivery by a majority of the Shareholders to OHM of written notice that the Average Operating Income Calculation will be accepted by the Shareholders without objection (which notice shall be binding on each of the Shareholders, including any Shareholder that is not a party to such notice). If a Notice of Objection with respect to the Average Operating Income calculation is timely delivered by a majority of the shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the date all disputed items are fully resolved pursuant to Sections 4.4(a)(ii) or 4.4(a)(iii). All cash payments constituting the Earnout Consideration shall be made by wire transfer of immediately available funds to the respective accounts designated by the Shareholders. All the OHM Common Stock constituting the Earnout Consideration, when issued and delivered by OHM to the Shareholders as provided in this Agreement, will be validly issued, fully paid and nonassessable. (c) The value of the OHM Common Stock delivered in payment of the Earnout Consideration shall be determined using the average of the closing prices of such stock on the national securities exchange or over-the-counter market in which such stock is then currently listed or designated for trading for each business day commencing on the day 30 calendar days prior to the date of issuance to the Shareholders and ending on the day immediately preceding the date of issuance to the Shareholders. The OHM Common Stock, if any, issued in payment of the Earnout Consideration shall be freely transferable upon receipt of such common stock by the Shareholders. Subject to Section 4.1 of this Agreement, if OHM is unable to issue freely transferable OHM Common Stock to the Shareholders within 60 days of the date the amount of the Earnout Consideration is finally determined pursuant to Section 4.4(b), OHM shall pay to the Shareholders their respective portion of the Earnout Consideration in cash by wire transfer of immediately available funds to the respective accounts designated by the Shareholders.

Payment of Earnout Consideration. In the event any Earnout Consideration is payable, on or before one hundred and twenty (120) days following the end of the Earnout Period (provided that (i) Within ninety days after the third anniversary of the Effective Date, OHM shall determine the Average Operating Income, subject there is no dispute with respect to review by OHM's accountants (the "Average Operating Income Calculation"). Within three business days after OHM's receipt of the Average Operating Income Calculation, OHM shall deliver such calculation to each of the Shareholders for review. Earnout Consideration and (ii) Unless a majority there is no claim for indemnification made by American Healthways in excess of the Shareholders (one of amount remaining in Escrow which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), which for purposes of this Section 4.4 shall include such Shareholder's estate, if any, or guardian, in the case of disability, gives the Company written notice of their objection to the Average Operating Income Calculation, which notice shall include the basis of the Shareholders' objection in reasonable detail ("Notice of Objection"), within 30 calendar days after receiving the Average Operating Income Calculation (the "Objection Period"), the Average Operating Income Calculation shall be final, conclusive and binding on OHM and each of the Shareholders. (iii) If a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration) deliver a Notice of Objection within the Objection Period, OHM and the Shareholders shall use reasonable efforts to resolve all disputes regarding objections set forth in the Notice of Objection, If OHM and the Shareholders are has not able to resolve all disputes regarding the Shareholders' objections set forth in the Notice of Objection within 14 calendar days after delivery to OHM of the Notice of Objection, the remaining disputed items shall be submitted for final resolution to an independent certified public accounting firm selected by mutual agreement of OHM, on the one hand, and the Shareholders, on the other hand, or if OHM and the Shareholders are unable to agree upon such accounting firm within 20 calendar days after the delivery of a Notice of Objection, OHM, on the one hand, and the Shareholders, on the other hand, shall promptly instruct their respective firms of independent certified public accountants to select, within five business days thereafter, a third independent certified public accounting firm and only the disputed items shall be submitted to such independent certified public accounting firm (the "Independent Accountants"), After offering OHM and OHM's representatives and the Shareholders and the Shareholders' representatives the opportunity to present their positions as to the disputed items, which opportunity shall not extend for more than 10 calendar days after the Independent Accountants have been selected, the Independent Accountants shall deliver a written report resolving the disputed items submitted for resolution and setting forth the basis for such resolution within 30 calendar days after OHM and the Shareholders have presented their positions as to the disputed items. The resolution of the Independent Accountants shall be final, conclusive and binding upon OHM and each of the Shareholders and shall be reflected in any necessary revisions to the Average Operating Income Calculation. Notwithstanding anything in this Agreement to the contrary, the scope of the Independent Accountants' review of any dispute between OHM and the Shareholders regarding the Average Operating Income Calculation shall be limited solely to the resolution of the Shareholders' objections that are not resolved prior to selection of the Independent Accountants and as are set forth in the Notice of Objection. (iv) One-half of the fees, costs and expenses of the Independent Accountants for services rendered pursuant to Section 4.4(a) shall be paid by the Shareholders and one-half Principal Stockholders pursuant to Article 10 of the Merger Agreement), American Healthways shall pay such fees, costs and expenses shall be paid by OHM. (b) If no Notice of Objection is timely delivered Earnout Consideration to a paying agent for the Former Stockholders designated by the ShareholdersStockholder Representative, OHM shall by wire transfer of immediately available funds if American Healthways elects to pay to the Shareholders, subject to Section 4.4(c), their respective any portion of the Earnout ConsiderationConsideration in cash, and/or by delivery of shares of common stock, par value $.001 per share, of American Healthways (the "Common Stock") if anyAmerican Healthways elects to pay any portion of the Earnout Consideration in Common Stock, five business provided that in the event American Healthways elects to pay in portion of the Earnout Consideration in Common Stock, it will only be obligated to pay those Former Stockholders who, at the time the Earnout Consideration is payable, qualify as an "accredited investor" as defined in Rule 501(a) of the Securities Act, as determined by American Healthways in its sole discretion. Such Common Stock delivered to the Stockholder Representative shall be registered for resale at the time the Earnout Consideration is due and payable or American Healthways may deliver unregistered shares, provided that American Healthways agrees to file an S-3 registration statement (provided that if American Healthways is not then eligible to register for resale such shares on Form S-3, such registration shall be on another appropriate form determined by American Healthways) (the "Registration Statement") with the Securities and Exchange Commission not later than thirty (30) days after the date on which the Earn-Out Consideration is payable in accordance with the terms of the Earn-Out Agreement, which Registration Statement shall cover the resale from time to time of the shares. American Healthways will use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof and will use its commercially reasonable efforts to maintain the effectiveness of such Registration Statement until the earlier of (i) the expiration date on which the shares of Common Stock issued to the Objection Period and Former Stockholders as Earnout Consideration included in the Registration Statement have been sold or (ii) the date on which the shares of delivery by a majority Common Stock issued to the Former Stockholders as Earnout Consideration may be sold under Rule 144(k) of the Shareholders Securities Act. Anything to OHM the contrary herein notwithstanding, American Healthways may postpone for a reasonable period of written notice time (not to exceed one period of up to ninety (90) days in any twelve (12) month period) the resale of shares pursuant to the Registration Statement if American Healthways determines in the good faith judgment of its board of directors that the Average Operating Income Calculation will resale of shares pursuant to the Registration Statement (a) could reasonably be accepted expected to have an adverse effect on any plan or proposal by the Shareholders without objection (which notice shall be binding on each American Healthways or any of the Shareholders, including any Shareholder that is not a party to such notice). If a Notice of Objection its subsidiaries with respect to any financing, acquisition, recapitalization or reorganization which is material to American Healthways or other transaction which is material to American Healthways or (b) could require the Average Operating Income calculation is timely delivered by a majority disclosure of material non-public information, the shareholders (one disclosure of which must could reasonably be Executive unless he is no longer employed by the Company or otherwise entitled expected to be adverse to the Earnout Considerationbest interests of American Healthways and its stockholders. The amount of Common Stock to be delivered shall be equal to the quotient of (x) divided by (y), OHM shall pay to where (x) is the Shareholders, subject to Section 4.4(c), their respective portion product of (A) the Earnout Consideration, if any, five business days after the date all disputed items are fully resolved pursuant to Sections 4.4(a)(ii) or 4.4(a)(iii). All cash payments constituting the total Earnout Consideration shall be made by wire transfer payable and (B) the percentage of immediately available funds Earnout Consideration that American Healthways elects to pay in Common Stock, and where (y) is the respective accounts designated by the Shareholders. All the OHM Common Stock constituting the Earnout Consideration, when issued and delivered by OHM to the Shareholders as provided in this Agreement, will be validly issued, fully paid and nonassessable. (c) The fair market value of the OHM Common Stock delivered in payment of the Earnout Consideration Stock, which shall be determined using equal the average of the closing prices price of such stock the Common Stock on the national securities exchange or over-the-counter market in which such stock is then currently listed or designated for NASDAQ Stock Market over the ten (10) trading for each business day commencing on the day 30 calendar period ending two (2) trading days prior to the date end of issuance the Earnout Period. If there is a dispute with respect to such Earnout Consideration, the Shareholders amount not in dispute shall be paid as provided above and ending on the day immediately preceding the date of issuance to the Shareholders. The OHM Common Stock, if any, issued in payment of the Earnout Consideration portion in dispute shall be freely transferable upon receipt of such common stock by the Shareholders. Subject to Section 4.1 of this Agreement, if OHM is unable to issue freely transferable OHM Common Stock to the Shareholders within 60 days deferred until resolution of the date the amount of the Earnout Consideration is finally determined pursuant to Section 4.4(b), OHM shall pay to the Shareholders their respective portion of the Earnout Consideration in cash by wire transfer of immediately available funds to the respective accounts designated by the Shareholdersdispute.

Payment of Earnout Consideration. On the last day of each month that a Monthly Earnout is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten (i10) Within ninety days after the third anniversary end of each calendar month in which the Effective Date, OHM shall determine Purchaser must pay the Average Operating Income, subject to review by OHM's accountants Seller the Monthly Earnout (the "Average Operating Income Calculation"). Within three business days after OHM's receipt of the Average Operating Income Calculation, OHM shall deliver such calculation to each of the Shareholders for review. (ii) Unless a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), which for purposes of this Section 4.4 shall include such Shareholder's estate, if any, or guardian, in the case of disability, gives the Company written notice of their objection to the Average Operating Income Calculation, which notice shall include the basis of the Shareholders' objection in reasonable detail ("Notice of Objection"), within 30 calendar days after receiving the Average Operating Income Calculation (the "Objection Period"), the Average Operating Income Calculation Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, that is the difference of (i) the Monthly Earnout Amount less (ii) the Monthly Base Amount (the "Earnout Gross Up Amount"), together with reasonably detailed data supporting such calculation (the "Earnout Notice"). The Purchaser shall give the Seller and its advisors timely access to all books and records reasonably required to verify such calculations. Not later than fifteen (15) days after receipt of the Earnout Notice (the "Earnout Review Period"), the Seller may deliver a dispute notice to the Purchaser (the "Dispute Notice"), notifying the Purchaser of the Seller's proposed adjustments to, or disputes with, the Purchaser's calculations. If the Seller does not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within thirty (30) days after the end of each Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a dispute, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Earnout Gross Up Amount that is not in dispute and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase of the Dispute Notice, then such agreed upon amount shall be finalthe Earnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, the parties shall jointly select and engage an independent accounting firm (other than the Purchaser's or the Seller's accounting firm) (the "Arbiter") to resolve any remaining disputes regarding the Earnout Gross Up Amount. If the parties cannot agree on the selection of an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be conclusive and binding on OHM and each of the Shareholders. parties. Promptly, but no later than twenty (iii20) If a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration) deliver a Notice of Objection within the Objection Period, OHM and the Shareholders shall use reasonable efforts to resolve all disputes regarding objections set forth in the Notice of Objection, If OHM and the Shareholders are not able to resolve all disputes regarding the Shareholders' objections set forth in the Notice of Objection within 14 calendar days after delivery to OHM acceptance of the Notice of Objectionits appointment as Arbiter, the remaining disputed items Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be submitted for final resolution to functioning as an independent certified public accounting firm selected expert and not as an arbitrator), based solely on written submissions by mutual agreement of OHM, on the one hand, Purchaser and the ShareholdersSeller, on the other handeach containing a computation of Earnout Gross Up Amount and not by independent review, or if OHM only those issues in dispute and the Shareholders are unable to agree upon such accounting firm within 20 calendar days after the delivery of a Notice of Objection, OHM, on the one hand, and the Shareholders, on the other hand, shall promptly instruct their respective firms of independent certified public accountants to select, within five business days thereafter, a third independent certified public accounting firm and only the disputed items shall be submitted to such independent certified public accounting firm (the "Independent Accountants"), After offering OHM and OHM's representatives and the Shareholders and the Shareholders' representatives the opportunity to present their positions as to the disputed items, which opportunity shall not extend for more than 10 calendar days after the Independent Accountants have been selected, the Independent Accountants shall deliver render a written report resolving the disputed items submitted for resolution and setting forth the basis for such resolution within 30 calendar days after OHM and the Shareholders have presented their positions as to the disputed items. The resolution of the Independent Accountants shall be final, conclusive and binding upon OHM and each of the Shareholders and shall be reflected in any necessary revisions to the Average Operating Income Calculation. Notwithstanding anything in this Agreement to the contrary, the scope of the Independent Accountants' review of any dispute between OHM and the Shareholders regarding the Average Operating Income Calculation shall be limited solely to the resolution of the Shareholders' objections that are not resolved prior to selection disputes and the resulting computation of the Independent Accountants Earnout Gross Up Amount. Such written report shall be conclusive and as are set forth binding on the parties. All proceedings conducted by the Arbiter shall take place in the Notice Company's corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of Objection. this Section 2.3 and (ivy) One-half of may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Independent Accountants for services rendered pursuant to Section 4.4(a) Arbiter shall be jointly paid by the Shareholders Purchaser and one-half of such fees, costs and expenses shall be paid by OHMthe Seller. (b) If no Notice of Objection is timely delivered by the Shareholders, OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the earlier of (i) the expiration of the Objection Period and (ii) the date of delivery by a majority of the Shareholders to OHM of written notice that the Average Operating Income Calculation will be accepted by the Shareholders without objection (which notice shall be binding on each of the Shareholders, including any Shareholder that is not a party to such notice). If a Notice of Objection with respect to the Average Operating Income calculation is timely delivered by a majority of the shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the date all disputed items are fully resolved pursuant to Sections 4.4(a)(ii) or 4.4(a)(iii). All cash payments constituting the Earnout Consideration shall be made by wire transfer of immediately available funds to the respective accounts designated by the Shareholders. All the OHM Common Stock constituting the Earnout Consideration, when issued and delivered by OHM to the Shareholders as provided in this Agreement, will be validly issued, fully paid and nonassessable. (c) The value of the OHM Common Stock delivered in payment of the Earnout Consideration shall be determined using the average of the closing prices of such stock on the national securities exchange or over-the-counter market in which such stock is then currently listed or designated for trading for each business day commencing on the day 30 calendar days prior to the date of issuance to the Shareholders and ending on the day immediately preceding the date of issuance to the Shareholders. The OHM Common Stock, if any, issued in payment of the Earnout Consideration shall be freely transferable upon receipt of such common stock by the Shareholders. Subject to Section 4.1 of this Agreement, if OHM is unable to issue freely transferable OHM Common Stock to the Shareholders within 60 days of the date the amount of the Earnout Consideration is finally determined pursuant to Section 4.4(b), OHM shall pay to the Shareholders their respective portion of the Earnout Consideration in cash by wire transfer of immediately available funds to the respective accounts designated by the Shareholders.

Payment of Earnout Consideration. On the last day of each month that a Monthly Earnout is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten (10) days after the end of each calendar month in which the Purchaser must pay the Seller the Monthly Earnout (the “Earnout Period”), the Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, that is the difference of (i) Within ninety the Monthly Earnout Amount less (ii) the Monthly Base Amount (the “Earnout Gross Up Amount”), together with reasonably detailed data supporting such calculation (the “Earnout Notice”). Not later than fifteen (15) days after receipt of the Earnout Notice (the “Earnout Review Period”), the Seller may deliver a dispute notice to the Purchaser (the “Dispute Notice”), notifying the Purchaser of the Seller’s proposed adjustments to, or disputes with, the Purchaser’s calculations. If the Seller does not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within thirty (30) days after the third anniversary end of each Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a dispute, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Effective DateEarnout Gross Up Amount that is not in dispute and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase of the Dispute Notice, OHM then such agreed upon amount shall determine be the Average Operating IncomeEarnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, subject to review by OHM's accountants the parties shall jointly select and engage an independent accounting firm (other than the Purchaser’s or the Seller’s accounting firm) (the "Average Operating Income Calculation"). Within three business days after OHM's receipt of the Average Operating Income Calculation, OHM shall deliver such calculation “Arbiter”) to each of the Shareholders for review. (ii) Unless a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to resolve any remaining disputes regarding the Earnout Consideration), which for purposes Gross Up Amount. If the parties cannot agree on the selection of this Section 4.4 shall include such Shareholder's estate, if any, or guardian, in the case of disability, gives the Company written notice of their objection an independent accounting firm to the Average Operating Income Calculation, which notice shall include the basis of the Shareholders' objection in reasonable detail ("Notice of Objection"), within 30 calendar days after receiving the Average Operating Income Calculation (the "Objection Period")act as Arbiter, the Average Operating Income Calculation parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be final, conclusive and binding on OHM and each of the Shareholders. parties. Promptly, but no later than twenty (iii20) If a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration) deliver a Notice of Objection within the Objection Period, OHM and the Shareholders shall use reasonable efforts to resolve all disputes regarding objections set forth in the Notice of Objection, If OHM and the Shareholders are not able to resolve all disputes regarding the Shareholders' objections set forth in the Notice of Objection within 14 calendar days after delivery to OHM acceptance of the Notice of Objectionits appointment as Arbiter, the remaining disputed items Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be submitted for final resolution to functioning as an independent certified public accounting firm selected expert and not as an arbitrator), based solely on written submissions by mutual agreement of OHM, on the one hand, Purchaser and the ShareholdersSeller, on the other handeach containing a computation of Earnout Gross Up Amount and not by independent review, or if OHM only those issues in dispute and the Shareholders are unable to agree upon such accounting firm within 20 calendar days after the delivery of a Notice of Objection, OHM, on the one hand, and the Shareholders, on the other hand, shall promptly instruct their respective firms of independent certified public accountants to select, within five business days thereafter, a third independent certified public accounting firm and only the disputed items shall be submitted to such independent certified public accounting firm (the "Independent Accountants"), After offering OHM and OHM's representatives and the Shareholders and the Shareholders' representatives the opportunity to present their positions as to the disputed items, which opportunity shall not extend for more than 10 calendar days after the Independent Accountants have been selected, the Independent Accountants shall deliver render a written report resolving the disputed items submitted for resolution and setting forth the basis for such resolution within 30 calendar days after OHM and the Shareholders have presented their positions as to the disputed items. The resolution of the Independent Accountants shall be final, conclusive and binding upon OHM and each of the Shareholders and shall be reflected in any necessary revisions to the Average Operating Income Calculation. Notwithstanding anything in this Agreement to the contrary, the scope of the Independent Accountants' review of any dispute between OHM and the Shareholders regarding the Average Operating Income Calculation shall be limited solely to the resolution of the Shareholders' objections that are not resolved prior to selection disputes and the resulting computation of the Independent Accountants Earnout Gross Up Amount. Such written report shall be conclusive and as are set forth binding on the parties. All proceedings conducted by the Arbiter shall take place in the Notice Company’s corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of Objection. this Section 2.3 and (ivy) One-half of may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Independent Accountants for services rendered pursuant to Section 4.4(a) Arbiter shall be jointly paid by the Shareholders Purchaser and one-half of such fees, costs and expenses shall be paid by OHMthe Seller. (b) If no Notice of Objection is timely delivered by the Shareholders, OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the earlier of (i) the expiration of the Objection Period and (ii) the date of delivery by a majority of the Shareholders to OHM of written notice that the Average Operating Income Calculation will be accepted by the Shareholders without objection (which notice shall be binding on each of the Shareholders, including any Shareholder that is not a party to such notice). If a Notice of Objection with respect to the Average Operating Income calculation is timely delivered by a majority of the shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the date all disputed items are fully resolved pursuant to Sections 4.4(a)(ii) or 4.4(a)(iii). All cash payments constituting the Earnout Consideration shall be made by wire transfer of immediately available funds to the respective accounts designated by the Shareholders. All the OHM Common Stock constituting the Earnout Consideration, when issued and delivered by OHM to the Shareholders as provided in this Agreement, will be validly issued, fully paid and nonassessable. (c) The value of the OHM Common Stock delivered in payment of the Earnout Consideration shall be determined using the average of the closing prices of such stock on the national securities exchange or over-the-counter market in which such stock is then currently listed or designated for trading for each business day commencing on the day 30 calendar days prior to the date of issuance to the Shareholders and ending on the day immediately preceding the date of issuance to the Shareholders. The OHM Common Stock, if any, issued in payment of the Earnout Consideration shall be freely transferable upon receipt of such common stock by the Shareholders. Subject to Section 4.1 of this Agreement, if OHM is unable to issue freely transferable OHM Common Stock to the Shareholders within 60 days of the date the amount of the Earnout Consideration is finally determined pursuant to Section 4.4(b), OHM shall pay to the Shareholders their respective portion of the Earnout Consideration in cash by wire transfer of immediately available funds to the respective accounts designated by the Shareholders.

Payment of Earnout Consideration. On the last day of each month that a Monthly Earnout is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten (10) days after the end of each calendar month in which the Purchaser must pay the Seller the Monthly Earnout (the “Earnout Period”), the Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, that is the difference of (i) Within ninety the Monthly Earnout Amount less (ii) the Monthly Base Amount (the “Earnout Gross Up Amount”), together with reasonably detailed data supporting such calculation (the “Earnout Notice”). The Purchaser shall give the Seller and its advisors timely access to all books and records reasonably required to verify such calculations. Not later than fifteen (15) days after receipt of the Earnout Notice (the “Earnout Review Period”), the Seller may deliver a dispute notice to the Purchaser (the “Dispute Notice”), notifying the Purchaser of the Seller’s proposed adjustments to, or disputes with, the Purchaser’s calculations. If the Seller does not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within thirty (30) days after the third anniversary end of each Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a dispute, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Effective DateEarnout Gross Up Amount that is not in dispute and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase of the Dispute Notice, OHM then such agreed upon amount shall determine be the Average Operating IncomeEarnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, subject to review by OHM's accountants the parties shall jointly select and engage an independent accounting firm (other than the Purchaser’s or the Seller’s accounting firm) (the "Average Operating Income Calculation"). Within three business days after OHM's receipt of the Average Operating Income Calculation, OHM shall deliver such calculation “Arbiter”) to each of the Shareholders for review. (ii) Unless a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to resolve any remaining disputes regarding the Earnout Consideration), which for purposes Gross Up Amount. If the parties cannot agree on the selection of this Section 4.4 shall include such Shareholder's estate, if any, or guardian, in the case of disability, gives the Company written notice of their objection an independent accounting firm to the Average Operating Income Calculation, which notice shall include the basis of the Shareholders' objection in reasonable detail ("Notice of Objection"), within 30 calendar days after receiving the Average Operating Income Calculation (the "Objection Period")act as Arbiter, the Average Operating Income Calculation parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be final, conclusive and binding on OHM and each of the Shareholders. parties. Promptly, but no later than twenty (iii20) If a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration) deliver a Notice of Objection within the Objection Period, OHM and the Shareholders shall use reasonable efforts to resolve all disputes regarding objections set forth in the Notice of Objection, If OHM and the Shareholders are not able to resolve all disputes regarding the Shareholders' objections set forth in the Notice of Objection within 14 calendar days after delivery to OHM acceptance of the Notice of Objectionits appointment as Arbiter, the remaining disputed items Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be submitted for final resolution to functioning as an independent certified public accounting firm selected expert and not as an arbitrator), based solely on written submissions by mutual agreement of OHM, on the one hand, Purchaser and the ShareholdersSeller, on the other handeach containing a computation of Earnout Gross Up Amount and not by independent review, or if OHM only those issues in dispute and the Shareholders are unable to agree upon such accounting firm within 20 calendar days after the delivery of a Notice of Objection, OHM, on the one hand, and the Shareholders, on the other hand, shall promptly instruct their respective firms of independent certified public accountants to select, within five business days thereafter, a third independent certified public accounting firm and only the disputed items shall be submitted to such independent certified public accounting firm (the "Independent Accountants"), After offering OHM and OHM's representatives and the Shareholders and the Shareholders' representatives the opportunity to present their positions as to the disputed items, which opportunity shall not extend for more than 10 calendar days after the Independent Accountants have been selected, the Independent Accountants shall deliver render a written report resolving the disputed items submitted for resolution and setting forth the basis for such resolution within 30 calendar days after OHM and the Shareholders have presented their positions as to the disputed items. The resolution of the Independent Accountants shall be final, conclusive and binding upon OHM and each of the Shareholders and shall be reflected in any necessary revisions to the Average Operating Income Calculation. Notwithstanding anything in this Agreement to the contrary, the scope of the Independent Accountants' review of any dispute between OHM and the Shareholders regarding the Average Operating Income Calculation shall be limited solely to the resolution of the Shareholders' objections that are not resolved prior to selection disputes and the resulting computation of the Independent Accountants Earnout Gross Up Amount. Such written report shall be conclusive and as are set forth binding on the parties. All proceedings conducted by the Arbiter shall take place in the Notice Company’s corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of Objection. this Section 2.3 and (ivy) One-half of may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Independent Accountants for services rendered pursuant to Section 4.4(a) Arbiter shall be jointly paid by the Shareholders Purchaser and one-half of such fees, costs and expenses shall be paid by OHMthe Seller. (b) If no Notice of Objection is timely delivered by the Shareholders, OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the earlier of (i) the expiration of the Objection Period and (ii) the date of delivery by a majority of the Shareholders to OHM of written notice that the Average Operating Income Calculation will be accepted by the Shareholders without objection (which notice shall be binding on each of the Shareholders, including any Shareholder that is not a party to such notice). If a Notice of Objection with respect to the Average Operating Income calculation is timely delivered by a majority of the shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the date all disputed items are fully resolved pursuant to Sections 4.4(a)(ii) or 4.4(a)(iii). All cash payments constituting the Earnout Consideration shall be made by wire transfer of immediately available funds to the respective accounts designated by the Shareholders. All the OHM Common Stock constituting the Earnout Consideration, when issued and delivered by OHM to the Shareholders as provided in this Agreement, will be validly issued, fully paid and nonassessable. (c) The value of the OHM Common Stock delivered in payment of the Earnout Consideration shall be determined using the average of the closing prices of such stock on the national securities exchange or over-the-counter market in which such stock is then currently listed or designated for trading for each business day commencing on the day 30 calendar days prior to the date of issuance to the Shareholders and ending on the day immediately preceding the date of issuance to the Shareholders. The OHM Common Stock, if any, issued in payment of the Earnout Consideration shall be freely transferable upon receipt of such common stock by the Shareholders. Subject to Section 4.1 of this Agreement, if OHM is unable to issue freely transferable OHM Common Stock to the Shareholders within 60 days of the date the amount of the Earnout Consideration is finally determined pursuant to Section 4.4(b), OHM shall pay to the Shareholders their respective portion of the Earnout Consideration in cash by wire transfer of immediately available funds to the respective accounts designated by the Shareholders.

Payment of Earnout Consideration. (ia) Within ninety The Earnout Consideration payable to the Seller, as provided in Section 1.2 above, shall be paid by the Buyer quarterly on or before forty-five (45) days after following the third anniversary end of each calendar quarter of the Effective Company, commencing with the first calendar quarter following the Closing Date, OHM shall determine the Average Operating Income, subject to review by OHM's accountants (the "Average Operating Income Calculation"). Within three business days after OHM's receipt Each such quarterly payment of the Average Operating Income Calculation, OHM shall deliver such calculation to each of Earnout Consideration will be based on the Shareholders for review. (ii) Unless a majority of the Shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), which for purposes of this Section 4.4 shall include such Shareholder's estateafter-tax net profits, if any, or guardianof the Company, computed in accordance with GAAP consistently applied for the case of disability, gives most recently completed calendar quarter. In the event that the Company written notice of their objection reports a loss for such period, the Buyer shall not be required to make a payment pursuant to this Section 1.6 for such period. A stand-alone profit and loss statement for the Average Operating Income Calculation, Company shall be maintained by the Buyer which notice shall will include the basis results of such business unit even if it is transferred or consolidated with other business units of the Shareholders' objection in reasonable detail ("Notice of Objection"), within 30 calendar days after receiving the Average Operating Income Calculation (the "Objection Period"), the Average Operating Income Calculation shall be final, conclusive and binding on OHM and each of the ShareholdersBuyer or any affiliates. (iiib) If On or before forty-five (45) days after the end of each calendar quarter, the Buyer shall provide the Seller and the Company with a majority statement showing the computation of (i) the after-tax net profits of the Shareholders Company for the most recently completed calendar quarter, and (one of which must be Executive unless he is no longer employed by ii) the Company or otherwise entitled quarterly Earnout Consideration, if any, payable to the Earnout Consideration) deliver a Notice of Objection within Seller pursuant to Section 1.2. The Seller shall have the Objection Periodoption, OHM and which shall not exceed once per calendar year, to engage, at the Shareholders shall use reasonable efforts to resolve all disputes regarding objections set forth in the Notice of ObjectionCompany's expense, If OHM and the Shareholders are not able to resolve all disputes regarding the Shareholders' objections set forth in the Notice of Objection within 14 calendar days after delivery to OHM of the Notice of Objection, the remaining disputed items shall be submitted for final resolution to an independent certified public accounting firm selected by mutual agreement of OHM, on the one hand, and the Shareholders, on the other hand, or if OHM and the Shareholders are unable to agree upon such accounting firm within 20 calendar days after the delivery of a Notice of Objection, OHM, on the one hand, and the Shareholders, on the other hand, shall promptly instruct their respective firms of independent certified public accountants to select, within five business days thereafter, a third independent certified public accounting firm and only the disputed items shall be submitted to such independent certified public accounting firm (the "Independent Accountants"), After offering OHM and OHM's representatives and the Shareholders and the Shareholders' representatives the opportunity to present their positions as reasonably acceptable to the disputed itemsBuyer, which opportunity shall not extend for more than 10 calendar days after the Independent Accountants have been selectedto examine, the Independent Accountants shall deliver a written report resolving the disputed items submitted for resolution in confidence, such books and setting forth the basis for such resolution within 30 calendar days after OHM and the Shareholders have presented their positions records as may be necessary to the disputed items. The resolution of the Independent Accountants shall be finaldetermine, conclusive and binding upon OHM and each of the Shareholders and shall be reflected in any necessary revisions to the Average Operating Income Calculation. Notwithstanding anything in this Agreement to the contrary, the scope of the Independent Accountants' review of any dispute between OHM and the Shareholders regarding the Average Operating Income Calculation shall be limited solely to the resolution of the Shareholders' objections that are not resolved prior to selection of the Independent Accountants and as are set forth in the Notice of Objection. (iv) One-half of the fees, costs and expenses of the Independent Accountants for services rendered pursuant to Section 4.4(a) shall be paid by the Shareholders and one-half of such fees, costs and expenses shall be paid by OHM. (b) If no Notice of Objection is timely delivered by the Shareholders, OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the earlier of (i) the expiration of the Objection Period and (ii) the date of delivery by a majority of the Shareholders to OHM of written notice that the Average Operating Income Calculation will be accepted by the Shareholders without objection (which notice shall be binding on each of the Shareholders, including any Shareholder that is not a party to such notice). If a Notice of Objection with respect to the Average Operating Income calculation is timely delivered by a majority most recently completed calendar year, the correctness of the shareholders (one of which must be Executive unless he is no longer employed by the Company or otherwise entitled to the Earnout Consideration), OHM shall pay to the Shareholders, subject to Section 4.4(c), their respective portion of the Earnout Consideration, if any, five business days after the date all disputed items are fully resolved pursuant to Sections 4.4(a)(ii) or 4.4(a)(iii). All cash payments constituting the Earnout Consideration shall be made by wire transfer of immediately available funds to the respective accounts designated by the Shareholders. All the OHM Common Stock constituting the Earnout Consideration, when issued and delivered by OHM to the Shareholders as provided in this Agreement, will be validly issued, fully paid and nonassessable. (c) The value of the OHM Common Stock delivered in any payment of the Earnout Consideration for the previous calendar year. Any information contained in any such audit report from the Company's certified public accountant shall be determined using the average of the closing prices of such stock on the national securities exchange or over-the-counter market in which such stock is then currently listed or designated for trading for each business day commencing on the day 30 calendar days prior to the date of issuance to the Shareholders and ending on the day immediately preceding the date of issuance to the Shareholdersdeemed confidential information. The OHM Common Stock, if any, issued in If any audit performed under this Section 1.6(b) shall indicate that any payment of the Earnout Consideration was underpaid, the Buyer shall be freely transferable upon receipt pay to the Seller the amount of such common stock by the Shareholdersunderpayment promptly. Subject to If any audit performed under this Section 4.1 of this Agreement, if OHM is unable to issue freely transferable OHM Common Stock to the Shareholders within 60 days of the date the amount 1.6(b) shall indicate that any payment of the Earnout Consideration is finally determined pursuant to Section 4.4(bhereunder was underpaid by more than five percent (5%), OHM the Buyer shall pay to the Shareholders their respective portion costs of the Earnout Consideration in cash by wire transfer of immediately available funds to the respective accounts designated by the Shareholderssuch audit.