Common use of Time for Determination Clause in Contracts

Time for Determination. (i) As soon as reasonably practicable following December 31, 2008 and no earlier than the completion of Buyer’s annual audit, Buyer shall determine (A) the Earnout Period EBITDA, (B) the Earnout Period Total Revenue and (C) the resulting Applicable Earnout Amount. A copy of Buyer’s computation of the Earnout Period EBITDA, the Earnout Period Total Revenue, and the resulting Applicable Earnout Amount, in each case as set forth in, and (in the case of the Applicable Earnout Amount) calculated in accordance with, Schedule 2.4 hereto, shall be delivered to Seller on or prior to March 3, 2009 and, unless Seller shall object to such computation within ten (10) Business Days after receipt thereof in accordance with the provisions of Section 2.4(b)(ii) below, the computations shall be binding and conclusive on the parties to this Agreement for purposes of this Agreement. (ii) If Seller shall object to Buyer’s computations by notifying Buyer in writing within ten (10) Business Days after receipt of Buyer’s computations pursuant to Section 2.4(b)(i), the amount of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such computations within thirty (30) days after such notification to Buyer by Seller, the determination of such amounts shall be submitted to the Independent Accountant for review, and such review by the Independent Accountant shall be limited to (A) such items and calculations as were addressed in the written notice of objection of Seller that have not been resolved by the parties and (B) any factual or mathematical errors contained in the information provided to or by Buyer. The parties shall cause the Independent Accountant to review, subject to limitations of the previous sentence, as promptly as practicable, the calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue and to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue, which calculation with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive and binding on the parties to this Agreement and shall be the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf of the General Partner and the Limited Partners) shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms of this Section 2.4. If the Independent Accountant is engaged pursuant to this Section 2.4(b)(ii), Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally by Buyer and Seller. Buyer may, in its sole discretion, elect to (but under no circumstances shall be obligated to) pay to the Independent Accountant the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (the “Seller Expenses”), in which case Buyer shall be reimbursed for such payment by deduction of the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9; provided, however, that if and only if the Independent Accountant enters into an engagement letter with Buyer and Seller which provides that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s fees and expenses in excess of $30,000, Buyer will not deduct from the amounts due pursuant to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheld. (iii) The Applicable Earnout Amount, if any, shall be paid to Seller on the later of (A) March 17, 2009 and (B) the fifth (5th) Business Day following the date that the determination of the Applicable Earnout Amount shall become binding and conclusive on the parties to this Agreement in accordance with Section 2.4(b)(i) or 2.4(b)(ii) above, as the case may be.

Time for Determination. (i) As soon as reasonably practicable Within 30 days following December 31, 2008 and no earlier than the completion of Buyer’s annual auditthe audited financial statements of the Buyer for each of the Earnout Periods, the Buyer shall determine (A) the Earnout EBITDA for such Earnout Period (the “Applicable Earnout EBITDA, (B”) and the Earnout Amount for such Earnout Period Total Revenue and (C) the resulting “Applicable Earnout Amount. A ”) and deliver to the Securityholders’ Representative a copy of such computations. Such computations delivered to the Securityholders’ Representative by the Buyer shall be conclusive and binding upon the parties, unless the Securityholders’ Representative, within 30 days after delivery to the Securityholders’ Representative of such computations, notifies the Buyer in writing that the Securityholders’ Representative disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. Immediately following delivery of the computations of the Applicable Earnout EBITDA and the Applicable Earnout Amount, the Securityholders’ Representative and its representatives shall have reasonable access to the books and records (including financial statements) of the Company during regular business hours to the extent necessary to verify the Buyer’s computation of the Applicable Earnout Period EBITDAEBITDA and the Applicable Earnout Amount. (ii) The parties shall in good faith attempt to resolve any dispute and, if the parties so resolve all disputes, the computations of the Applicable Earnout Period Total Revenue, EBITDA and the resulting Applicable Earnout Amount, as amended to the extent necessary to reflect the resolution of the dispute, shall be conclusive and binding on the parties. If the parties do not reach agreement in each case resolving the dispute within 30 days after notice is given by the Securityholders’ Representative to the Buyer pursuant to Section 1.9(b)(i) above, the parties shall submit the dispute to a nationally recognized independent accounting firm which is mutually agreeable to the parties (the “Earnout Arbiter”) for resolution. If the parties cannot agree on the selection of an independent accounting firm to act as set forth inthe Earnout Arbiter, the parties shall request the AAA to appoint such firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than 20 days after acceptance of his or her appointment as Earnout Arbiter, the Earnout Arbiter shall determine (it being understood that in making such determination, the case Earnout Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Buyer and the Securityholders’ Representative, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the Applicable Earnout Amount) calculated in accordance with, Schedule 2.4 hereto, shall be delivered to Seller on or prior to March 3, 2009 and, unless Seller shall object to such computation within ten (10) Business Days after receipt thereof in accordance with the provisions of Section 2.4(b)(ii) below, the computations shall be binding and conclusive on the parties to this Agreement for purposes of this Agreement. (ii) If Seller shall object to Buyer’s computations by notifying Buyer in writing within ten (10) Business Days after receipt of Buyer’s computations pursuant to Section 2.4(b)(i), the amount of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such computations within thirty (30) days after such notification to Buyer by Seller, the determination of such amounts shall be submitted to the Independent Accountant for review, and such review by the Independent Accountant shall be limited to (A) such items and calculations as were addressed in the written notice of objection of Seller that have not been resolved by the parties and (B) any factual or mathematical errors contained in the information provided to or by Buyer. The parties shall cause the Independent Accountant to review, subject to limitations of the previous sentence, as promptly as practicable, the calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue and to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue, which calculation with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive and binding on the parties to this Agreement and absent manifest error. All proceedings conducted by the Earnout Arbiter shall take place in Salt Lake City, Utah. In resolving any disputed item, the Earnout Arbiter (x) shall be the sole and exclusive means of resolving such disputes. If requested bound by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf of the General Partner and the Limited Partners) shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms provisions of this Section 2.41.9(b)(ii) and (y) may not assign a value to the Applicable Earnout Amount 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. If The fees, costs and expenses of the Independent Accountant is engaged pursuant Earnout Arbiter shall be equally allocated to this Section 2.4(b)(ii), and borne by the Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally by Buyer and Seller. Buyer may, in its sole discretion, elect to (but under no circumstances shall be obligated to) pay to the Independent Accountant the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (the “Seller Expenses”), in which case Buyer shall be reimbursed for such payment by deduction of the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9; provided, however, that if and only if the Independent Accountant enters into an engagement letter with Buyer and Seller which provides that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s fees and expenses in excess of $30,000, Buyer will not deduct from the amounts due pursuant to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheldSelling Securityholders. (iii) The Applicable Earnout Amount, if any, Amount shall be paid to Seller on the later of Selling Securityholders according to each Selling Securityholder’s Pro Rata Share as follows: (A) March 17as to any amounts that are not subject to dispute as set forth in a notice of the Securityholders’ Representative pursuant to Section 1.9(b)(ii) above, 2009 within five Business Days after the expiration of the time during which the Securityholders’ Representative may object to the Buyer’s calculation of the Applicable Earnout Amount; and (B) as to any amounts that are subject to dispute as set forth in a notice of the fifth (5thSecurityholders’ Representative pursuant to Section 1.9(b)(ii) above, within five Business Day Days following the date that the determination of the disputed portion of the Applicable Earnout Amount shall become binding and conclusive on the parties to this Agreement in accordance with Section 2.4(b)(iSections 1.9(b)(i) or 2.4(b)(ii1.9(b)(ii) above, as the case may be, and in each case together with interest thereon from the date payment is due following computations and resolutions of disputes to the date of payment thereof. Interest shall be equal to the prime rate as set forth in the Wall Street Journal on the date the payment is due.

Time for Determination. (i) As soon as reasonably practicable Within 60 days following December 31, 2008 and no earlier than the completion of Buyer’s annual auditthe audited financial statements of Buyer for each of the Earnout Periods, Buyer shall determine (A) the Earnout Period EBITDA, (B) the EBITDA for such Earnout Period Total Revenue and (C) the resulting “Applicable Earnout Amount. A EBITDA”) and deliver to the Sellers’ Representative a copy of Buyer’s computation of such computation. Unless the Earnout Period EBITDA, the Earnout Period Total Revenue, and the resulting Applicable Earnout Amount, in each case as set forth in, and (in the case of the Applicable Earnout Amount) calculated in accordance with, Schedule 2.4 hereto, shall be delivered to Seller on or prior to March 3, 2009 and, unless Seller shall object to such computation within ten (10) Business Days after receipt thereof in accordance with the provisions of Section 2.4(b)(ii) below, the computations shall be binding and conclusive on the parties to this Agreement for purposes of this Agreement. (ii) If Seller shall object to Buyer’s computations by notifying Sellers’ Representative notifies Buyer in writing within ten (10) Business Days after receipt of Buyer’s computations pursuant to Section 2.4(b)(i), the amount of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such computations within thirty (30) days after Buyer’s delivery of such notification computation of any objection to Buyer by Seller, the determination of the Applicable Earnout EBITDA (an “Earnout Objection Notice”), such amounts computation of the Applicable Earnout EBITDA shall become final and binding. During such 30-day period, Buyer will make available for review by the Sellers’ Representative its books, records, work papers and other documents and information relating to the computation of the Applicable Earnout EBITDA as may be reasonably requested by the Sellers’ Representative. Any Earnout Objection Notice shall specify in reasonable detail the basis for the objections set forth therein. (ii) If the Sellers’ Representative provides the Earnout Objection Notice to Buyer within such 30-day period, the Sellers’ Representative and Buyer shall, during the 30-day period following Buyer’s receipt of the Earnout Objection Notice, attempt in good faith to resolve the Sellers’ Representative’s objections. If the Sellers’ Representative and Buyer are unable to resolve all such objections within such 30-day period, the matters remaining in dispute shall be submitted to the Independent Accountant for reviewto resolve the dispute. After the end of the aforesaid 30-day period, neither Sellers’ Representative nor Buyer may introduce additional disagreements or increase the amount of any disagreement, and any item not so identified shall be deemed to be agreed to by all parties and will be final and binding upon the parties. If any dispute is submitted to the Accountant, each party will furnish to the Accountant such work papers and other documents and information relating to the disputed issues as the Accountant may request and are available to that party or its independent accountants (including information of the Company and its Subsidiary) and each party shall be afforded the opportunity to present the Accountant material relating to the determination and to discuss the determination with the Accountant. The Accountant shall act as an expert and not as an arbitrator and shall resolve matters in dispute and adjust and establish the disputed Applicable Earnout EBITDA to reflect such resolution. It is the intent of Buyer and the Sellers’ Representative that the process set forth in this Section 2.7(b) and the activities of the Accountant in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Notwithstanding anything to the contrary in this Agreement, the scope of the Accountant’s review by of any dispute between Buyer and the Independent Accountant Sellers’ Representative regarding the Applicable Earnout EBITDA pursuant to this Section 2.7(b) shall be limited solely to (A) such items and calculations as were addressed the resolution of the objections to the calculation of the Applicable Earnout EBITDA that are set forth in the written notice Earnout Objection Notice, and the Accountant shall have no authority over any other disagreement (including but not limited to questions of objection Law, interpretation of Seller that have not been resolved by the parties contract, and (B) any factual or mathematical errors contained in the information provided to or by Buyerfraud). The parties shall cause instruct the Independent Accountant to review, subject to limitations of the previous sentence, render its reasoned written decision as promptly as practicablepracticable but in no event later than sixty (60) days after such dispute is submitted to the Accountant. The resolution of disputed items by the Accountant shall be final and binding, and the calculation determination of the Earnout Period EBITDA Accountant shall constitute an arbitral award that is final, binding and the Earnout Period Total Revenue non-appealable and to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreementupon which a judgment may be entered by a court having jurisdiction thereover. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue, which calculation with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive and binding on the parties to this Agreement and shall be the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf of the General Partner and the Limited Partners) shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms of this Section 2.4. If the Independent Accountant is engaged pursuant to this Section 2.4(b)(ii), Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally by Buyer Buyer, on the one hand, and Seller. Buyer maySellers, in its sole discretionon the other hand, elect based on the percentage which the portion of the contested amount not awarded to (but under no circumstances shall be obligated to) pay each party bears to the Independent Accountant the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (the “Seller Expenses”), in which case Buyer shall be reimbursed for amount actually contested by such payment by deduction of the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9; provided, however, that if and only if the Independent Accountant enters into an engagement letter with Buyer and Seller which provides that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s fees and expenses in excess of $30,000, Buyer will not deduct from the amounts due pursuant to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheldparty. (iii) The Applicable Earnout Amount, if any, Amount for each Earnout Period shall be paid to Seller on Sellers in accordance with their pro rata percentages set forth in Exhibit A (as may be amended from time to time at the later direction of Sellers’ Representative based upon written agreement of the Sellers) or as the Sellers’ Representative may otherwise direct, within five (A) March 17, 2009 and (B) the fifth (5th5) Business Day following the date that the determination of Days after the Applicable Earnout Amount shall EBITDA has become final and binding and conclusive on the parties to this Agreement in accordance with this Section 2.4(b)(i) or 2.4(b)(ii) above, as the case may be2.7(b).

Time for Determination. (i) As soon as reasonably practicable Within 10 days following December 31, 2008 and no earlier than the completion of Buyer’s annual auditthe audited financial statements of Buyer for each of the Earnout Periods, Buyer shall determine (A) the Earnout EBITDA for such Earnout Period (the “Applicable Earnout EBITDA”) and deliver to the Indemnification Representative a copy of such computation. Upon the request of the Indemnification Representative, the Buyer shall prepare and deliver to the Indemnification Representative income statement and expense detail supporting the calculation of the Applicable Earnout EBITDA for such Earnout Period. Such computation delivered to the Indemnification Representative by the Buyer shall be conclusive and binding upon the parties, unless the Indemnification Representative, within 30 days after delivery to the Indemnification Representative of such computation, notifies the Buyer in writing that the Indemnification Representative disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. Immediately following delivery of the computation of the Applicable Earnout EBITDA, the Indemnification Representative shall have reasonable access to the books and records (Bincluding financial statements) of the Earnout Period Total Revenue and (C) Surviving Corporation during regular business hours for the resulting Applicable Earnout Amount. A copy purpose of verifying Buyer’s computation of the Earnout Period EBITDA, the Earnout Period Total Revenue, and the resulting Applicable Earnout Amount, in each case as set forth in, EBITDA and (in the case of the Applicable Earnout Amount) calculated in accordance withAmount for such Earnout Period. Solely for the purpose of clarification, Schedule 2.4 heretothe 2007 Earnout Amount and the 2008 Earnout Amount A will be computed after the completion of the audited financial statements of Buyer for its fiscal year ending December 31, 2007 and the 2008 Earnout Amount B shall be delivered to Seller on or prior to March 3computed after the completion of the audited financial statements of Buyer for its fiscal year ending December 31, 2009 and, unless Seller shall object to such computation within ten (10) Business Days after receipt thereof in accordance with the provisions of Section 2.4(b)(ii) below, the computations shall be binding and conclusive on the parties to this Agreement for purposes of this Agreement2008. (ii) If Seller shall object to Buyer’s computations by notifying Buyer in writing within ten (10) Business Days after receipt of Buyer’s computations pursuant to Section 2.4(b)(i), the amount of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such computations within thirty (30) days after such notification to Buyer by Seller, the determination of such amounts shall be submitted to the Independent Accountant for review, and such review by the Independent Accountant shall be limited to (A) such items and calculations as were addressed in the written notice of objection of Seller that have not been resolved by the parties and (B) any factual or mathematical errors contained in the information provided to or by Buyer. The parties shall cause in good faith attempt to resolve any dispute and, if the Independent Accountant to reviewparties so resolve all disputes, subject to limitations the computation of the previous sentenceApplicable Earnout EBITDA, as promptly as practicable, amended to the calculation extent necessary to reflect the resolution of the Earnout Period EBITDA and the Earnout Period Total Revenue and to makedispute, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue, which calculation with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive and binding on the parties. If the parties do not reach agreement in resolving the dispute within 30 days after notice is given by the Indemnification Representative to this Agreement the Buyer pursuant to Section 1.8(b)(i) above, the parties shall submit the dispute to a nationally recognized independent accounting firm which is mutually agreeable to the parties (the “Earnout Arbiter”) for resolution. If the parties cannot agree on the selection of an independent accounting firm to act as the Earnout Arbiter, the parties shall request the American Arbitration Association to appoint such firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than 20 days after acceptance of his or her appointment as Earnout Arbiter, the Earnout Arbiter shall determine (it being understood that in making such determination, the Earnout Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Buyer and the Indemnification Representative, and not by independent review, only those issues in dispute and shall be render a written report as to the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf resolution of the General Partner dispute and the Limited Partners) shall execute an engagement letter with resulting computation of the Independent Accountant setting forth the terms and conditions of such engagementApplicable Earnout Amount, which shall be consistent with conclusive and binding on the terms parties. All proceedings conducted by the Earnout Arbiter shall take place in Boston, Massachusetts. In resolving any disputed item, the Earnout Arbiter (x) shall be bound by the provisions of this Section 2.41.8(b)(ii) and (y) may not assign a value to the Applicable Earnout Amount 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. If The fees, costs and expenses of the Independent Accountant is engaged pursuant Earnout Arbiter shall be equally allocated to this Section 2.4(b)(ii), and borne by the Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally by Buyer and Seller. Buyer may, in its sole discretion, elect to (but under no circumstances shall be obligated to) pay to the Independent Accountant the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (the “Seller Expenses”), in which case Buyer shall be reimbursed for such payment by deduction of the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9; provided, however, that if and only if the Independent Accountant enters into an engagement letter with Buyer and Seller which provides that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s fees and expenses in excess of $30,000, Buyer will not deduct from the amounts due pursuant to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheldCompany Stockholders. (iii) The Applicable Earnout Amount, if any, Amount shall be paid to Seller on the later of Company Stockholders and the Optionholders as follows: (A) March 17as to any amounts that are not subject to dispute as set forth in a notice of the Indemnification Representative pursuant to Section 1.8(b)(ii) above, 2009 within a reasonable time after the expiration of the time during which the Indemnification Representative may object to the Buyer’s calculation of the Applicable Earnout Amount; and (B) as to any amounts that are subject to dispute as set forth in a notice of the fifth Indemnification Representative pursuant to Section 1.8(b)(ii) above, within five (5th5) Business Day business days following the date that the determination of the disputed portion of the Applicable Earnout Amount shall become binding and conclusive on the parties to this Agreement in accordance with Section 2.4(b)(iSections 1.8(b)(i) or 2.4(b)(ii1.8(b)(ii) above, as the case may be.

Time for Determination. (i) As soon promptly as reasonably practicable following December 31possible, 2008 and no earlier than but in any event within 30 days after the completion of Buyer’s annual audit, Buyer shall determine (A) the Earnout Period EBITDA, (B) the Earnout Period Total Revenue and (C) the resulting Applicable Earnout Amount. A copy audited financial statements of Buyer’s computation Parent for each of the Earnout Period EBITDAPeriods, Parent will deliver to the Seller Representative a statement (an “Earnout Period Total Revenue, and the resulting Applicable Earnout Amount, in each case as set Statement”) setting forth in, and (in the case Parent’s calculation of the Applicable EBITDA for the applicable Earnout Amount) calculated in accordance withPeriod, Schedule 2.4 hereto, which shall be delivered to Seller on or prior to March 3, 2009 and, unless Seller shall object to such computation within ten (10) Business Days after receipt thereof prepared in accordance with Exhibit E, together with the provisions audited financial statements for such Earnout Period. After delivery of Section 2.4(b)(ii) belowthe Earnout Statement, the computations Seller Representative and its accountants shall be binding permitted reasonable access during normal business hours to review Parent’s and conclusive on the parties Surviving Company’s books and records and any work papers (including any work papers of Parent’s and the Surviving Company’s accountants) related to this Agreement for purposes the preparation of this Agreement. (ii) If the Earnout Statement, subject to such confidentiality restrictions as the accountants shall reasonably request. The Seller shall object to Buyer’s computations by notifying Buyer in writing within ten (10) Business Days after receipt Representative and its accountants may make inquiries of Buyer’s computations pursuant to Section 2.4(b)(i)Parent, the amount Surviving Company and their respective accountants and employees regarding questions concerning or disagreements with the Earnout Statement arising in the course of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such computations within thirty (30) days after such notification to Buyer by Seller, the determination of such amounts shall be submitted to the Independent Accountant for reviewtheir review thereof, and such review by the Independent Accountant Parent shall be limited to (A) such items use its, and calculations as were addressed in the written notice of objection of Seller that have not been resolved by the parties and (B) any factual or mathematical errors contained in the information provided to or by Buyer. The parties shall cause the Independent Accountant to review, subject to limitations subsidiaries of the previous sentenceSurviving Company to use their, as promptly as practicablecommercially reasonable efforts to cause any such accountants and employees to cooperate with and respond to such inquiries. If the Seller Representative has any objections to the Earnout Statement, the calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue and Seller Representative shall deliver to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue Parent a written report of its review, statement setting forth in reasonable detail each item in dispute, the amount thereof in dispute and the basis for its calculation objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to Parent within 30 days after delivery of the Earnout Period EBITDA Statement, the Earnout Statement shall be final, binding and non-appealable by the parties hereto. The Seller Representative and Parent shall negotiate in good faith to resolve any objections set forth in the Objections Statement (and all such discussions related thereto shall, unless otherwise agreed by Parent and the Earnout Period Total RevenueSeller Representative, which calculation be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within 30 days after the delivery of the Objections Statement, the Seller Representative and Parent shall submit such dispute to the Independent Auditor. If any dispute is submitted to the Independent Auditor, each party will furnish to the Independent Auditor such work papers and other documents and information relating to the disputed issues as the Independent Auditor may request and are available to that party or its accountants (including information of the Surviving Company and the subsidiaries of the Surviving Company) and each party shall be entitled to present the Independent Auditor material relating to the determination and to discuss, in the presence of any other party, the determination with the Independent Auditor. The Independent Auditor shall resolve only those matters that remain in dispute after the 30-day resolution period. It is the intent of Parent and the Company that the process set forth in this Section 2.2.4 and the activities of the Independent Auditor in connection herewith are not intended to be and, in fact, are not arbitration and that the Independent Auditor shall act as an auditor and not an arbitrator and no formal arbitration rules shall be followed (including rules with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive procedures and binding on the parties to this Agreement discovery). The Seller Representative and shall be the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf of the General Partner and the Limited Partners) shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms of this Section 2.4. If the Independent Accountant is engaged pursuant to this Section 2.4(b)(ii), Buyer and Seller Parent shall use their commercially reasonable efforts to cause the Independent Accountant Auditor to complete its review and written report resolve all such disagreements as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement but in no event later than 45 days after submission of the Independent Accountant shall be borne equally by Buyer and Seller. Buyer may, in its sole discretion, elect to (but under no circumstances shall be obligated to) pay disputed issues to the Independent Accountant Auditor. The resolution of the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (dispute by the “Seller Expenses”), in which case Buyer Independent Auditor shall be reimbursed for such payment by deduction of final, binding and non-appealable on the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9parties hereto; provided, however, that this provision shall not prohibit either party from instituting litigation to enforce any ruling of the Independent Auditor resolving any such dispute. The Earnout Statement shall be modified if necessary to reflect such determination. The fees and only expenses of the Independent Auditor (or such other person) shall be borne 50% by Parent, on the one hand, and 50% by the Participating Holders, on the other hand; provided, however, that, if the Independent Accountant enters into an engagement letter with Buyer Auditor determines that one party is wholly and Seller which provides unequivocally correct, then the other party will be solely responsible for such fees and expenses; provided further, that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s any such fees and expenses in excess of $30,000to be paid by the Participating Holders may, Buyer will not deduct at the Seller Representative’s option, be paid from the amounts due pursuant Expense Funds to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheldthe extent there are sufficient funds so available. (iii) The Applicable Earnout Amount, if any, shall be paid to Seller on the later of (A) March 17, 2009 and (B) the fifth (5th) Business Day following the date that the determination of the Applicable Earnout Amount shall become binding and conclusive on the parties to this Agreement in accordance with Section 2.4(b)(i) or 2.4(b)(ii) above, as the case may be.

Time for Determination. (i) As soon as reasonably practicable following December 31, 2008 2005, and no earlier than the completion of Buyer’s annual auditin any event on or prior to February 20, Buyer 2006, Parent shall determine (A) the Earnout Period Adjusted EBITDA, (B) the Earnout Period Total Revenue Incremental Adjusted EBITDA and (C) the Total Revenue for the Earnout Period, and (D) the resulting Applicable Earnout Amount. A copy of Buyer’s computation of the Earnout Period EBITDA, the Earnout Period Total Revenue, and deliver to the resulting Applicable Earnout Amount, in each case as set forth in, and (in the case of the Applicable Earnout Amount) calculated in accordance with, Schedule 2.4 hereto, shall be delivered to Seller Representatives on or prior to March 3February 28, 2009 and, unless Seller shall 2006 a copy of such computation. Unless the Representatives object to such computation within ten (10) Business Days after receipt thereof in accordance with the provisions of Section 2.4(b)(ii2.3(b)(ii) below, the computations shall be binding and conclusive on the parties to this Agreement for purposes of this Agreement. Immediately following the Earnout Period, the Representatives shall have full access to the books and records (including financial statements) of the Company during regular business hours to the extent necessary to verify Parent’s computations of the Adjusted EBITDA, the Incremental Adjusted EBITDA, Total Revenue for the Earnout Period and the Applicable Earnout Amount. (ii) If Seller shall the Representatives object to BuyerParent’s computations by notifying Buyer Parent in writing within ten (10) Business Days after receipt of Buyer’s computations pursuant to Section 2.4(b)(i)thereof, the amount of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer the Parent and Sellerthe Representatives. If Buyer Parent and Seller the Representatives shall be unable to reach agreement with respect to such computations within thirty (30) days after such notification to Buyer by Sellernotification, the determination of such amounts shall be submitted to Ernst &Young LLP, independent certified public accountants (the “Independent Accountant Accountant”) for review, and such review by the Independent Accountant shall be limited to (A) such items and calculations as were addressed in the written notice of objection of Seller the Representatives that have not been resolved by the parties and (B) any factual or mathematical errors contained in the information provided to or by BuyerParent. The parties shall cause the Independent Accountant to review, subject to limitations of the previous sentence, as promptly as practicable, the calculation of the Earnout Period Adjusted EBITDA, the Incremental Adjusted EBITDA and the Total Revenue for the Earnout Period Total Revenue and to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of the Earnout Period Adjusted EBITDA, the Incremental Adjusted EBITDA and the Total Revenue for the Earnout Period Total RevenuePeriod, which calculation with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive and binding on the parties to this Agreement and the Company Shareholders and shall be the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer Parent, the Company and Seller (on its own behalf and the Representatives, on behalf of the General Partner and the Limited Partners) Company Shareholders, shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms of this Section 2.4. If the Independent Accountant is engaged pursuant to this Section 2.4(b)(ii), Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement2.3. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally paid by Buyer and Seller. Buyer may, in its sole discretion, elect to (but under no circumstances shall be obligated to) pay to the Independent Accountant the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (the “Seller Expenses”), in which case Buyer shall be reimbursed for such payment by deduction of the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9; provided, however, that if and only if the Independent Accountant enters into an engagement letter with Buyer and Seller which provides that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s fees and expenses in excess of $30,000, Buyer will not deduct from the amounts due pursuant to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheldParent. (iii) The Applicable Earnout Amount, if any, Amount shall be paid to Seller on the later of Company Shareholders as follows: (A) as to any amounts that are not subject to dispute as set forth in a notice of the Representatives pursuant to Section 2.3(b)(ii) above, on or prior to March 1715, 2009 2006; and (B) as to any amounts that are subject to dispute as set forth in a notice of the fifth Representatives pursuant to Section 2.3(b)(ii) above, within five (5th5) Business Day Days following the date that the determination of the disputed portion of the Applicable Earnout Amount shall become binding and conclusive on the parties to this Agreement in accordance with Section 2.4(b)(iSections 2.3(b)(i) or 2.4(b)(ii2.3(b)(ii) above, as the case may be. (iv) If Company management does not make the financial statements of the Company for the twelve-month period ended December 31, 2005 reasonably available to Parent on or before January 15, 2006, then the time for performance of each of Parent’s obligations pursuant to this Section 2.3(b) shall be extended by one (1) Business Day for each Business Day that such financial statements shall remain unavailable to Parent following January 15, 2006; provided, however, in no event shall such extension extend beyond the date of the filing of Parent’s SEC Form 10-K for the year ended December 31, 2005. (v) Any dispute, claim or controversy arising out of or related to the agreements or procedures described in Section 2.3(b)(i) and not otherwise resolved pursuant to Section 2.3(b)(ii) hereof shall be resolved by either: (i) a written settlement agreement or memorandum executed by Parent and the Representatives; or (ii) in the absence of such a written settlement agreement within ten (10) Business Days following receipt by Parent of the written notice from the Representatives, by binding arbitration between Parent and the Representatives. If no settlement agreement can be reached after good faith negotiation, either Parent or the Representatives may, by written notice to the other, demand arbitration of the matter and the matter shall be settled by arbitration conducted by three arbitrators. Within fifteen (15) days after such written notice is sent, Parent (on the one hand) and the Representatives (on the other hand) shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. Any arbitration proceeding hereunder shall last no longer than three (3) Business Days, unless the parties to such arbitration mutually agree to extend the proceeding. The decision of the arbitrators as to any matter in dispute shall be binding and conclusive upon the parties to this Agreement. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in New York, New York under the commercial rules then in effect of Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The non-prevailing party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of JAMS, and the expenses, including, without limitation, the reasonable attorneys’ fees and costs, incurred by the prevailing party to the arbitration. The arbitration panel shall be instructed to determine which party to the arbitration is the prevailing party and which party is the non-prevailing party.