Common use of Calculation of Earn-Out Payments Clause in Contracts

Calculation of Earn-Out Payments. (a) During the Earn-Out Period, Calavo shall provide to the Sellers’ Representative, at Calavo’s expense, no later than the monthly meeting of the Board of Directors of Calavo (which in no event shall be later than 30 days after the end of each calendar month), monthly statements providing in reasonable detail information regarding the operation of the Business and the EBITDA and Revenues achieved by the Business for the twelve-months ended with the prior calendar month and the twelve-months ended with the two months immediately preceding such month, together with any other information reasonably necessary to permit the Sellers’ Representative to assess progress toward the achievement of the Earn-Out Triggers and the Benchmark (each, an “Earn-Out Statement”). Each Earn-Out Statement will be prepared in accordance with Financial Statement Principles. Purchaser shall maintain such accounting records, ledgers, books and other documents as may be necessary to prepare such statements and make such records, ledgers, books and other documents available to the Sellers’ Representative upon his request after reasonable notice and during normal business hours. (b) In the event of any objection by the Sellers’ Representative with respect to the determination of the EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out Period, the Sellers’ Representative shall give written notice to Calavo of the existence of such objection and the Parties will attempt to resolve any disputed items in good faith for a period of 30 days from the receipt of such written notice. If the Sellers’ Representative does not deliver a written objection within 30 days after his receipt of an Earn-Out Statement, then the calculation of the EBITDA, Revenues and the Earn-Out Payment payable for the Earn-Out Period as set forth in the applicable Earn-Out Statement shall be deemed to have been accepted. (c) Failing resolution pursuant to Section 2.15(b) within 30 days after receipt of the written notice of objection from the Sellers’ Representative, then either Calavo or the Sellers’ Representative may submit any unresolved disputed items with respect to the amount of EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out Period for binding resolution to the Independent Accounting Firm. Calavo and the Sellers’ Representative shall direct the Independent Accounting Firm to, within 30 days following such submission, resolve the unresolved objections and such resolution shall be final and binding on all Parties hereto. (d) Each of Calavo and the Sellers’ Representative shall submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 10 days after the date of the engagement of the Independent Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions on the unresolved objections. Each of Calavo and the Sellers’ Representative may (but shall not be required to) submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 20 days after the date of the engagement of the Independent Accounting Firm, a memorandum responding to the initial memorandum submitted to the Independent Accounting Firm by the other Party. Unless requested by the Independent Accounting Firm in writing, no Party hereto may present any additional information or arguments to the Independent Accounting Firm, either orally or in writing. (e) Within 30 days after the date of its engagement hereunder, the Independent Accounting Firm shall issue a written ruling which shall include a revised Earn-Out Statement as adjusted (i) pursuant to any resolutions to objections agreed upon by Calavo and the Sellers’ Representative and (ii) pursuant to the Independent Accounting Firm’s resolution of the unresolved objections. The Independent Accounting Firm shall review only those matters specified in the unresolved objections and shall make no changes to the Earn-Out Statement, except as are required to resolve the unresolved objections. The Earn-Out Statement provided by the Independent Accounting Firm pursuant to this Section 2.15 shall be deemed to be the final Earn-Out Statement and it shall be final and binding on all Parties hereto. The Parties agree that the procedure set forth in this Section 2.15 for resolving disputes with respect to the Earn-Out Statement shall be the sole and exclusive method for resolving any such disputes. The Independent Accounting Firm’s determination may be enforced in any court of competent jurisdiction, but the substance of the Independent Accounting Firm’s determination shall not be subject to review in any such proceeding. (f) Calavo, on the one hand, and the Sellers, on the other hand, shall each be responsible for one-half of the fees and expenses of the Independent Accounting Firm. (g) After the Closing, upon reasonable written notice, Purchaser shall furnish or cause to be furnished to the Sellers’ Representative access, during normal business hours, to the Books and Records of Surviving RFG for any reasonable business purpose. The Sellers’ Representative acknowledges that receipt of (i) the Earn-Out Statements, together with any supporting documentation, and any information which may be gained as a result of the access contemplated by such Section 2.15, to the extent not already disclosed to the public, may constitute receipt of confidential and/or material, non-public information (the “Earn-Out Statement Confidential Information”) concerning Purchaser. In addition, the Sellers’ Representative acknowledges that he and the other Sellers are prohibited from (i) purchasing or selling Securities of Calavo until 48 hours after such Earn-Out Statement Confidential Information (or financial information of the Purchaser covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public and (ii) communicating such Earn-Out Statement Confidential Information to any other Person under circumstances in which it is reasonably foreseeable that such Person will purchase or sell Securities of Calavo until such Earn-Out Statement Confidential Information (or financial information of Calavo covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public. In addition, the Sellers’ Representative shall cause any Person (including any of the Sellers’ Representative’s officers, employees, directors, managers, advisors, agents, attorneys, accountants or Representatives) receiving access to Earn-Out Statement Confidential Information on behalf of the Sellers’ Representative to keep such Earn-Out Statement Confidential Information confidential and not disclose any such Earn-Out Statement Confidential Information to others. Notwithstanding anything in this Agreement to the contrary, the Sellers’ Representative shall be entitled to disclose Earn-Out Statement Confidential Information (i) if requested or required by law, regulation or legal or regulatory process (in which case, prior to such disclosure the Sellers’ Representative will give the Purchaser prior written notice and an opportunity to obtain, at the Purchasers’ sole cost and expense, a protective order or other appropriate remedy against such disclosure; in the event such protective order or other remedy is not obtained, the Sellers’ Representative will use commercially reasonable efforts to disclose only that portion of the Earn-Out Statement Confidential Information which is legally required to be disclosed and to ensure that all Earn-Out Statement Confidential Information that is so disclosed will be accorded confidential treatment, in each case at the Purchasers’ sole cost and expense) and (ii) to the extent necessary to enforce its rights under this Agreement.

Calculation of Earn-Out Payments. (a) During the Earn-Out PeriodAs promptly as practicable, Calavo shall provide to the Sellers’ Representative, at Calavo’s expense, but no later than the monthly meeting of the Board of Directors of Calavo (which in no event shall be later than 30 days days, after the end of each calendar month), monthly statements providing in reasonable detail information regarding the operation of the Business and the EBITDA and Revenues achieved by the Business for the twelve-months ended with the prior calendar month and the twelve-months ended with the two months immediately preceding such month, together with any other information reasonably necessary to permit the Sellers’ Representative to assess progress toward the achievement of the an Earn-Out Triggers out Year, Purchaser will cause to be prepared and delivered to the Benchmark Sellers a certificate (each, an “Earn-Out Statementout Certificate”). Each ) setting forth in reasonable detail Purchaser’s calculation of Cobalt Revenue for such Earn-Out Statement will be prepared in accordance with Financial Statement Principles. Purchaser shall maintain such accounting records, ledgers, books and other documents as may be necessary to prepare such statements and make such records, ledgers, books and other documents available to the Sellers’ Representative upon his request after reasonable notice and during normal business hours. (b) In the event of any objection by the Sellers’ Representative with respect to the determination of the EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out Period, the Sellers’ Representative shall give written notice to Calavo of the existence of such objection and the Parties will attempt to resolve any disputed items in good faith for a period of 30 days from the receipt of such written noticeout Year. If the Sellers’ Representative does not deliver a written objection Sellers disagree with Purchaser’s calculation of Cobalt Revenue for such Earn-out Year, the Sellers may, within 30 days after his receipt delivery of an Earn-Out Statement, then the calculation of the EBITDA, Revenues and the Earn-Out Payment payable for out Certificate, deliver a notice to Purchaser disagreeing with such calculation. Any such notice of disagreement shall specify those items or amounts as to which the Earn-Out Period as set forth in Sellers disagree, and the applicable Earn-Out Statement Sellers shall be deemed to have been accepted. (c) Failing resolution pursuant to Section 2.15(b) within 30 days after receipt of the written notice of objection from the Sellers’ Representative, then either Calavo or the Sellers’ Representative may submit any unresolved disputed agreed with all other items with respect to the amount of EBITDA, Revenues or and amounts contained in the Earn-Out Payment payable for out Certificate. If the Earn-Out Period for binding resolution to the Independent Accounting Firm. Calavo and the Sellers’ Representative shall direct the Independent Accounting Firm to, within 30 days following such submission, resolve the unresolved objections and such resolution shall be final and binding on all Parties hereto. (d) Each Sellers do not so notify Purchaser of Calavo and the Sellers’ Representative shall submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 10 days after the date of the engagement of the Independent Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions on the unresolved objections. Each of Calavo and the Sellers’ Representative may (but shall not be required to) submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 20 days after the date of the engagement of the Independent Accounting Firm, a memorandum responding to the initial memorandum submitted to the Independent Accounting Firm by the other Party. Unless requested by the Independent Accounting Firm in writing, no Party hereto may present any additional information or arguments to the Independent Accounting Firm, either orally or in writing. (e) Within 30 days after the date of its engagement hereunder, the Independent Accounting Firm shall issue a written ruling which shall include a revised Earn-Out Statement as adjusted (i) pursuant to any resolutions to objections agreed upon by Calavo and the Sellers’ Representative and (ii) pursuant to the Independent Accounting Firm’s resolution of the unresolved objections. The Independent Accounting Firm shall review only those matters specified in the unresolved objections and shall make no changes to the Earn-Out Statement, except as are required to resolve the unresolved objections. The Earn-Out Statement provided by the Independent Accounting Firm pursuant to this Section 2.15 shall be deemed to be the final Earn-Out Statement and it shall be final and binding on all Parties hereto. The Parties agree that the procedure set forth in this Section 2.15 for resolving disputes dispute with respect to the Earn-Out Statement shall out Certificate within such 30-day period, the Earn-out Certificate will be final, conclusive and binding on the sole and exclusive method for resolving any such disputes. The Independent Accounting Firm’s determination may be enforced in any court of competent jurisdiction, but the substance of the Independent Accounting Firm’s determination shall not be subject to review in any such proceedingparties. (fb) CalavoIf a notice of disagreement shall be duly delivered pursuant to Section 2.01(a), on Purchaser and the one hand, Sellers shall negotiate in good faith to resolve such dispute. If Purchaser and the Sellers, on notwithstanding such good faith effort, fail to resolve such dispute within 15 days after the other handSellers advise Purchaser of their objections, then Purchaser and the Sellers jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable, and in any event not more than 15 days thereafter, Purchaser and the Sellers shall each be responsible for one-half prepare and submit a presentation detailing such party’s complete statement of proposed resolution of the fees dispute to the Accounting Firm. As soon as practicable thereafter, Purchaser and the Sellers shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and the Sellers. The parties shall share the expenses of the Independent Accounting FirmFirm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the parties. (gc) After For purposes of complying with the Closingterms set forth in this Section 2.01 of Exhibit A, upon reasonable written notice, Purchaser each party shall furnish or cause to be furnished cooperate with and make available to the Sellers’ Representative accessother party and its representatives all information, during normal business hoursrecords, to the Books data and Records of Surviving RFG for any reasonable business purpose. The Sellers’ Representative acknowledges that receipt of (i) the Earn-Out Statements, together with any supporting documentationworking papers, and any information which shall permit access to its facilities and personnel, as may be gained as a result of reasonably required in connection with the access contemplated by such Section 2.15, to the extent not already disclosed to the public, may constitute receipt of confidential and/or material, non-public information (the “Earn-Out Statement Confidential Information”) concerning Purchaser. In addition, the Sellers’ Representative acknowledges that he preparation and the other Sellers are prohibited from (i) purchasing or selling Securities of Calavo until 48 hours after such Earn-Out Statement Confidential Information (or financial information of the Purchaser covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public and (ii) communicating such Earn-Out Statement Confidential Information to any other Person under circumstances in which it is reasonably foreseeable that such Person will purchase or sell Securities of Calavo until such Earn-Out Statement Confidential Information (or financial information of Calavo covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public. In addition, the Sellers’ Representative shall cause any Person (including any of the Sellers’ Representative’s officers, employees, directors, managers, advisors, agents, attorneys, accountants or Representatives) receiving access to Earn-Out Statement Confidential Information on behalf of the Sellers’ Representative to keep such Earn-Out Statement Confidential Information confidential and not disclose any such Earn-Out Statement Confidential Information to others. Notwithstanding anything in this Agreement to the contrary, the Sellers’ Representative shall be entitled to disclose Earn-Out Statement Confidential Information (i) if requested or required by law, regulation or legal or regulatory process (in which case, prior to such disclosure the Sellers’ Representative will give the Purchaser prior written notice and an opportunity to obtain, at the Purchasers’ sole cost and expense, a protective order or other appropriate remedy against such disclosure; in the event such protective order or other remedy is not obtained, the Sellers’ Representative will use commercially reasonable efforts to disclose only that portion analysis of the Earn-Out Statement Confidential Information which is legally required out Certificate and the resolution of any disputes thereunder (subject to be disclosed reasonable confidentiality restrictions and to ensure that all Earn-Out Statement Confidential Information that is so disclosed will be accorded confidential treatmentthe provision of such assurances, releases, indemnities or other agreements as accountants may customarily require in each case at the Purchasers’ sole cost and expense) and (ii) to the extent necessary to enforce its rights under this Agreementsuch circumstances).

Calculation of Earn-Out Payments. (a) During the Earn-Out PeriodAs promptly as practicable, Calavo shall provide to the Sellers’ Representative, at Calavo’s expense, but no later than the monthly meeting of the Board of Directors of Calavo (which in no event shall be later than 30 days days, after the end of each calendar month), monthly statements providing in reasonable detail information regarding the operation of the Business and the EBITDA and Revenues achieved by the Business for the twelve-months ended with the prior calendar month and the twelve-months ended with the two months immediately preceding such month, together with any other information reasonably necessary to permit the Sellers’ Representative to assess progress toward the achievement of the an Earn-Out Triggers out Year, Purchaser will cause to be prepared and delivered to the Benchmark Sellers a certificate (each, an “Earn-Out Statementout Certificate”). Each ) setting forth in reasonable detail Purchaser’s calculation of Cobalt Revenue for such Earn-Out Statement will be prepared in accordance with Financial Statement Principles. Purchaser shall maintain such accounting records, ledgers, books and other documents as may be necessary to prepare such statements and make such records, ledgers, books and other documents available to the Sellers’ Representative upon his request after reasonable notice and during normal business hours. (b) In the event of any objection by the Sellers’ Representative with respect to the determination of the EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out Period, the Sellers’ Representative shall give written notice to Calavo of the existence of such objection and the Parties will attempt to resolve any disputed items in good faith for a period of 30 days from the receipt of such written noticeout Year. If the Sellers’ Representative does not deliver a written objection Sellers disagree with Purchaser’s calculation of Cobalt Revenue for such Earn-out Year, the Sellers may, within 30 days after his receipt delivery of an Earn-Out Statement, then the calculation of the EBITDA, Revenues and the Earn-Out Payment payable for out Certificate, deliver a notice to Purchaser disagreeing with such calculation. Any such notice of disagreement shall specify those items or amounts as to which the Earn-Out Period as set forth in Sellers disagree, and the applicable Earn-Out Statement Sellers shall be deemed to have been accepted. (c) Failing resolution pursuant to Section 2.15(b) within 30 days after receipt of the written notice of objection from the Sellers’ Representative, then either Calavo or the Sellers’ Representative may submit any unresolved disputed agreed with all other items with respect to the amount of EBITDA, Revenues or and amounts contained in the Earn-Out Payment payable for out Certificate. If the Earn-Out Period for binding resolution to the Independent Accounting Firm. Calavo and the Sellers’ Representative shall direct the Independent Accounting Firm to, within 30 days following such submission, resolve the unresolved objections and such resolution shall be final and binding on all Parties hereto. (d) Each Sellers do not so notify Purchaser of Calavo and the Sellers’ Representative shall submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 10 days after the date of the engagement of the Independent Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions on the unresolved objections. Each of Calavo and the Sellers’ Representative may (but shall not be required to) submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 20 days after the date of the engagement of the Independent Accounting Firm, a memorandum responding to the initial memorandum submitted to the Independent Accounting Firm by the other Party. Unless requested by the Independent Accounting Firm in writing, no Party hereto may present any additional information or arguments to the Independent Accounting Firm, either orally or in writing. (e) Within 30 days after the date of its engagement hereunder, the Independent Accounting Firm shall issue a written ruling which shall include a revised Earn-Out Statement as adjusted (i) pursuant to any resolutions to objections agreed upon by Calavo and the Sellers’ Representative and (ii) pursuant to the Independent Accounting Firm’s resolution of the unresolved objections. The Independent Accounting Firm shall review only those matters specified in the unresolved objections and shall make no changes to the Earn-Out Statement, except as are required to resolve the unresolved objections. The Earn-Out Statement provided by the Independent Accounting Firm pursuant to this Section 2.15 shall be deemed to be the final Earn-Out Statement and it shall be final and binding on all Parties hereto. The Parties agree that the procedure set forth in this Section 2.15 for resolving disputes dispute with respect to the Earn-Out Statement shall out Certificate within such 30-day period, the Earn-out Certificate will be final, conclusive and binding on the sole and exclusive method for resolving any such disputes. The Independent Accounting Firm’s determination may be enforced in any court of competent jurisdiction, but the substance of the Independent Accounting Firm’s determination shall not be subject to review in any such proceedingparties. (fb) CalavoIf a notice of disagreement shall be duly delivered pursuant to Section 2.01(a), on Purchaser and the one hand, Sellers shall negotiate in good faith to resolve such dispute. If Purchaser and the Sellers, on notwithstanding such good faith effort, fail to resolve such dispute within 15 days after the other handSellers advise Purchaser of their objections, then Purchaser and the Sellers jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable, and in any event not more than 15 days thereafter, Purchaser and the Sellers shall each be responsible for one-half prepare and submit a presentation detailing such party’s complete statement of proposed resolution of the fees dispute to the Accounting Firm. As soon as practicable thereafter, Purchaser and the Sellers shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and the Sellers. The parties shall share the expenses of the Independent Accounting FirmFirm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the parties. (gc) After For purposes of complying with the Closingterms set forth in this Section 2.01 of Exhibit A, upon reasonable written notice, Purchaser each party shall furnish or cause to be furnished cooperate with and make available to the Sellers’ Representative accessother party and its representatives all information, during normal business hoursrecords, to the Books data and Records of Surviving RFG for any reasonable business purpose. The Sellers’ Representative acknowledges that receipt of (i) the Earn-Out Statements, together with any supporting documentationworking papers, and any information which shall permit access to its facilities and personnel, as may be gained as a result of reasonably required in connection with the access contemplated by such Section 2.15, to the extent not already disclosed to the public, may constitute receipt of confidential and/or material, non-public information (the “Earn-Out Statement Confidential Information”) concerning Purchaser. In addition, the Sellers’ Representative acknowledges that he preparation and the other Sellers are prohibited from (i) purchasing or selling Securities of Calavo until 48 hours after such Earn-Out Statement Confidential Information (or financial information of the Purchaser covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public and (ii) communicating such Earn-Out Statement Confidential Information to any other Person under circumstances in which it is reasonably foreseeable that such Person will purchase or sell Securities of Calavo until such Earn-Out Statement Confidential Information (or financial information of Calavo covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public. In addition, the Sellers’ Representative shall cause any Person (including any of the Sellers’ Representative’s officers, employees, directors, managers, advisors, agents, attorneys, accountants or Representatives) receiving access to Earn-Out Statement Confidential Information on behalf of the Sellers’ Representative to keep such Earn-Out Statement Confidential Information confidential and not disclose any such Earn-Out Statement Confidential Information to others. Notwithstanding anything in this Agreement to the contrary, the Sellers’ Representative shall be entitled to disclose Earn-Out Statement Confidential Information (i) if requested or required by law, regulation or legal or regulatory process (in which case, prior to such disclosure the Sellers’ Representative will give the Purchaser prior written notice and an opportunity to obtain, at the Purchasers’ sole cost and expense, a protective order or other appropriate remedy against such disclosure; in the event such protective order or other remedy is not obtained, the Sellers’ Representative will use commercially reasonable efforts to disclose only that portion analysis of the Earn-Out Statement Confidential Information which is legally required out Certificate and the resolution of any disputes thereunder (subject to be disclosed CLI-2060753v9 reasonable confidentiality restrictions and to ensure that all Earn-Out Statement Confidential Information that is so disclosed will be accorded confidential treatmentthe provision of such assurances, releases, indemnities or other agreements as accountants may customarily require in each case at the Purchasers’ sole cost and expense) and (ii) to the extent necessary to enforce its rights under this Agreementsuch circumstances).

Calculation of Earn-Out Payments. (a) During the Earn-Out Period, Calavo shall provide to the Sellers’ Representative, at Calavo’s expense, no later than the monthly meeting of the Board of Directors of Calavo (which in no event shall be later than 30 days after the end of each calendar month), monthly statements providing in reasonable detail information regarding the operation of the Business and the EBITDA and Revenues achieved by the Business for the twelve-months ended with the prior calendar month and the twelve-months ended with the two months immediately preceding such month, together with any other information reasonably necessary to permit the Sellers’ Representative to assess progress toward the achievement The determination of the Earn-Out Triggers out Payments, if any, to be paid pursuant to Section 3.2 shall be made pursuant to the following provisions: (a) No later than March 31, 2009 and March 31, 2010, respectively, Buyer shall in good faith prepare or cause to be prepared and shall deliver to Holdings and the Benchmark ESOP Trust a calculation of EBITDA for the years ending December 31, 2008 and December 31, 2009, respectively, as well as a calculation of the Adjusted EBITDA for the year ending December 31, 2008 and December 31, 2009, respectively (eachfor each year, an the “Earn-Out StatementEBITDA Calculations”). Each Earn-Out Statement will Holdings, the ESOP Trust and their respective representatives shall be prepared in accordance with Financial Statement Principles. Purchaser shall maintain such accounting records, ledgers, books permitted to review the working papers of Buyer and other documents as may be necessary to prepare such statements and make such records, ledgers, books and other documents available of its certified public accountants related to the Sellers’ Representative upon his request after reasonable notice EBITDA Calculations, and shall have access during normal business hourshours upon reasonable notice to all relevant books and records and employees of the Business in order to review the calculation of the EBITDA Calculations. (b) Holdings and the ESOP Trust will have a period of sixty days (60) following the delivery of the EBITDA Calculations for the years ending December 31, 2008 and December 31, 2009, as the case may be, to notify Buyer of any disagreements with such EBITDA Calculations. Any such notice shall be accompanied by supporting documentation containing reasonable detail. Failure to notify Buyer within such 60-day period shall be deemed acceptance of such EBITDA Calculations. In the event Holdings and/or the ESOP Trust timely notifies Buyer of any objection by the Sellers’ Representative with respect to the determination disagreement, each of the EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out PeriodHoldings, the Sellers’ Representative shall give written notice to Calavo of the existence of such objection ESOP Trust and the Parties Buyer agrees that it will attempt to resolve any disputed items in good faith for a period of 30 days from the receipt of to resolve such written noticedisagreement. If the Sellers’ Representative does not deliver a written objection within 30 sixty (60) days after his receipt of an Earn-Out Statement, then the calculation delivery to Buyer of the EBITDAnotification by Holdings and/or the ESOP Trust of a disagreement, Revenues and the Earn-Out Payment payable for the Earn-Out Period as set forth in the applicable Earn-Out Statement shall be deemed parties are unable to have been accepted. (c) Failing resolution pursuant to Section 2.15(b) within 30 days after receipt of the written notice of objection from the Sellers’ Representative, then either Calavo or the Sellers’ Representative may submit any unresolved disputed items with respect to the amount of EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out Period for binding resolution to the Independent Accounting Firm. Calavo and the Sellers’ Representative shall direct the Independent Accounting Firm to, within 30 days following resolve such submission, resolve the unresolved objections and such resolution shall be final and binding on all Parties hereto. (d) Each of Calavo and the Sellers’ Representative shall submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 10 days after the date of the engagement of the Independent Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions on the unresolved objections. Each of Calavo and the Sellers’ Representative may (but shall not be required to) submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 20 days after the date of the engagement of the Independent Accounting Firm, a memorandum responding to the initial memorandum submitted to the Independent Accounting Firm by the other Party. Unless requested by the Independent Accounting Firm in writing, no Party hereto may present any additional information or arguments to the Independent Accounting Firmdisagreement, either orally or in writing. (e) Within 30 days after Holdings and/or the date of its engagement hereunder, the Independent Accounting Firm shall issue a written ruling which shall include a revised Earn-Out Statement as adjusted (i) pursuant to any resolutions to objections agreed upon by Calavo and the Sellers’ Representative and (ii) pursuant to the Independent Accounting Firm’s resolution of the unresolved objections. The Independent Accounting Firm shall review only those matters specified in the unresolved objections and shall make no changes to the Earn-Out Statement, except as are required to resolve the unresolved objections. The Earn-Out Statement provided by the Independent Accounting Firm pursuant to this Section 2.15 shall be deemed to be the final Earn-Out Statement and it shall be final and binding on all Parties hereto. The Parties agree that the procedure set forth in this Section 2.15 for resolving disputes with respect to the Earn-Out Statement shall be the sole and exclusive method for resolving any such disputes. The Independent Accounting Firm’s determination may be enforced in any court of competent jurisdiction, but the substance of the Independent Accounting Firm’s determination shall not be subject to review in any such proceeding. (f) CalavoESOP Trust, on the one hand, and the Sellersor Buyer, on the other hand, shall each have the right to submit the determination of such matters to the Independent Auditor whose decision shall be responsible for one-half delivered to Buyer, Holdings and the ESOP Trust within sixty (60) days of the fees submission to the Independent Auditor and expenses shall be binding on the parties. The cost of the Independent Accounting FirmAuditor shall be paid by the party whose aggregate estimate of the disputed amount or amounts, as the case may be, differs most greatly from the determination of the Independent Auditor. (gc) After the Closing, upon reasonable written notice, Purchaser shall furnish or cause Any cash payment to be furnished made pursuant to Section 3.3 shall be paid within five (5) Business Days of the final determination of such amount by wire transfer of immediately available funds. Any such payment shall be made to such account or accounts as may be designated by Holdings at least two (2) Business Days prior to the Sellers’ Representative access, during normal business hours, date that such payment is to be made. (d) For the Books and Records purpose of Surviving RFG for any reasonable business purpose. The Sellers’ Representative acknowledges that receipt of (i) calculating Adjusted EBITDA to determine the Earn-Out StatementsPayments, together (i) there shall not be any allocation of corporate overhead to the Business without the prior written consent of Holdings (which shall not be unreasonably withheld or delayed) other than for items required to bring the Company into compliance with applicable laws; (ii) there shall not be any allocation of expenses in connection with Buyer’s compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated thereunder; (iii) the expenses related to insurance coverage of the Business provided under the Buyer’s insurance programs shall not exceed the actual costs for such benefits in 2007 except for inflationary cost increases; (iv) with respect to calculating the matching component expense for the 401(k) plan, the Business shall recognize an amount equal to the annualized 2008 matching component expense of the 401(k) Component, plus 50% of the incremental annualized expense, if any, incurred by Buyer during the respective fiscal year relating to the matching component of the 401(k) Component for employees of the Business after the Closing; (v) there shall not be any allocation of expenses incurred by any party in connection with this Agreement, including independent auditor fees pursuant to Section 3.1, attorneys’ fees or similar expenses, provided, however, that this clause (v) shall not apply to the liabilities of any underlying claims; (vi) except with the prior approval of Holdings, there shall not be any allocation of expenses or accruals in connection with any supporting documentationchange in the organization, and maintenance, operation, actuarial reserve methods or policies, or capitalization, of Jamestown, other than to comply with any information which may be gained as a result of the access contemplated by such Section 2.15, CIMA statutory regulations or requirements applicable to the extent operation of Jamestown as conducted on the Closing Date; (vii) there shall not already disclosed be any allocation of expenses in connection with any severance payment or termination payment to ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ pursuant to any Employment Agreement with Buyer; and (viii) any amounts excluded from the public, may constitute receipt calculation of confidential and/or material, non-public information (the “Earn-Out Statement Confidential Information”) concerning Purchaser. In addition, Payments pursuant to the Sellers’ Representative acknowledges that he and last sentence of Section 9.2 hereof shall be excluded from the other Sellers are prohibited from (i) purchasing or selling Securities calculation of Calavo until 48 hours after such Earn-Out Statement Confidential Information (or financial information of the Purchaser covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public and (ii) communicating such Earn-Out Statement Confidential Information to any other Person under circumstances in which it is reasonably foreseeable that such Person will purchase or sell Securities of Calavo until such Earn-Out Statement Confidential Information (or financial information of Calavo covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public. In addition, the Sellers’ Representative shall cause any Person (including any of the Sellers’ Representative’s officers, employees, directors, managers, advisors, agents, attorneys, accountants or Representatives) receiving access to Earn-Out Statement Confidential Information on behalf of the Sellers’ Representative to keep such Earn-Out Statement Confidential Information confidential and not disclose any such Earn-Out Statement Confidential Information to others. Notwithstanding anything in this Agreement to the contrary, the Sellers’ Representative shall be entitled to disclose Earn-Out Statement Confidential Information (i) if requested or required by law, regulation or legal or regulatory process (in which case, prior to such disclosure the Sellers’ Representative will give the Purchaser prior written notice and an opportunity to obtain, at the Purchasers’ sole cost and expense, a protective order or other appropriate remedy against such disclosure; in the event such protective order or other remedy is not obtained, the Sellers’ Representative will use commercially reasonable efforts to disclose only that portion of the Earn-Out Statement Confidential Information which is legally required to be disclosed and to ensure that all Earn-Out Statement Confidential Information that is so disclosed will be accorded confidential treatment, in each case at the Purchasers’ sole cost and expense) and (ii) to the extent necessary to enforce its rights under this AgreementPayments.