Common use of Earn-Out Consideration Clause in Contracts

Earn-Out Consideration. (a) Not later than February 13, 2011, Buyer shall assess and calculate the Profiler Product Bookings for the period beginning on the January 1, 2010 and ending on December 31, 2010 (the “Measurement Period”) and shall prepare or cause to be prepared and deliver or cause to be delivered to Seller a written statement (the “Earn Out Analysis Statement”) setting forth Buyer’s final calculation of the Profiler Product Bookings, together with such documentation as may be reasonably necessary to support such calculation. If the Profiler Product Bookings during the Measurement Period shall exceed $8,000,000, then as soon as practicable, which shall be no later than 30 business days following the earlier of (i) the resolution of any disputes pursuant to Section 3.4(c), (ii) the expiration of the time period during which Seller may deliver the Earn Out Objection Notice pursuant to Section 3.4(b) and (iii) the written waiver by Seller of the time period during which Seller may deliver the Earn Out Objection Notice pursuant to Section 3.4(c), Buyer shall pay or cause to be paid to Seller the Earn Out Consideration. (b) If within 10 days following Seller’s receipt of the Earn Out Analysis Statement, Seller has not delivered to Buyer written notice (the “Earn Out Objection Notice”) of its objections to the Earn Out Analysis Statement (such Earn Out Objection Notice must contain a statement describing in reasonable detail the basis of such objections), then Buyer’s calculation of the Profiler Product Bookings shall be deemed final and conclusive; provided, however, in the event that Buyer fails to deliver to Seller an Earn Out Analysis Statement by February 13, 2011, Seller may deliver to Buyer an Earn-Out Objection Notice no later than March 5, 2011. (c) If Seller delivers the Earn Out Objection Notice within the periods specified in Section 3.4(b), then Buyer and Seller shall endeavor in good faith to resolve the objections, for a period not to exceed 10 days from the date of delivery of the Earn Out Objection Notice. If at the end of the 10-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to an accounting firm or certified public account (the “Referee”) mutually acceptable to Buyer and Seller. The Referee shall determine any unresolved items within 20 days after the objections that remain in dispute are submitted to it. If any remaining objections are submitted to the Referee for resolution, (i) each party shall furnish to the Referee such work papers and other documents and information relating to such objections as the Referee may request and are available to that party (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) to the extent that a value has been assigned to any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; and (iii) the determination by the Referee as set forth in a written notice delivered to both parties by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof. (d) If the Referee awards a majority of the dollar value of the items actually in dispute and to be resolved by the Referee to Seller, Buyer shall pay the fees and expenses of the Referee. If the Referee awards a majority of the dollar value of the items actually in dispute and to be resolved by the Referee to Buyer, Seller shall pay the fees and expenses of the Referee. Otherwise, such fees and expenses shall be allocated to and borne equally by Buyer and Seller.

Earn-Out Consideration. (a) Not later than February 13, 2011, Buyer shall assess and calculate the Profiler Product Bookings 2.1 As additional consideration for the period beginning on Sale Shares, the January 1, 2010 and ending on December 31, 2010 (the “Measurement Period”) and shall prepare or cause to be prepared and deliver or cause to be delivered to Seller a written statement (the “Earn Out Analysis Statement”) setting forth Buyer’s final calculation of the Profiler Product Bookings, together with such documentation as may be reasonably necessary to support such calculation. If the Profiler Product Bookings during the Measurement Period shall exceed $8,000,000, then as soon as practicable, which shall be no later than 30 business days following the earlier of (i) the resolution of any disputes pursuant to Section 3.4(c), (ii) the expiration of the time period during which Seller may deliver the Earn Out Objection Notice pursuant to Section 3.4(b) and (iii) the written waiver by Seller of the time period during which Seller may deliver the Earn Out Objection Notice pursuant to Section 3.4(c), Buyer shall pay to the Sellers (Earn-out Payment) an amount equal to 42.5% of EBITDA in respect of the Financial Period ending on the Reference Date, such payment to be calculated and paid in accordance with the remaining provisions of this Schedule. 2.2 For the purpose of calculating the Earn-Out Payment the Reference Date shall, subject to paragraph 2.3, be 31 July 2018 unless ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall elect for 31 July 2016 or cause 31 July 2017 to be the Reference Date and such election has been made by notice in writing to the Buyer within the 3 month period following either 31 July 2016 or 31 July 2017. For the avoidance of doubt there may only be one Reference Date and one Earn-Out Payment. 2.3 In the event that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall resign as chief executive officer of the Company during the Earn-Out Period then, unless a Reference Date has already been fixed pursuant to and in accordance with paragraph 2.2, the Reference Date shall be the 31 July next following the effective date of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ceasing to be the chief executive officer of the Company. 2.4 Any Earn-out Payment that the Buyer is required to pay pursuant to this Schedule shall be paid to Seller the Earn Out Consideration. (b) If Sellers in cash in £ sterling within 10 days following Seller’s receipt Business Days of the Earn Out Analysis Statement, Seller has not delivered to Buyer written notice (the “Earn Out Objection Notice”) of its objections to the Earn Out Analysis Statement (such Earn Out Objection Notice must contain a statement describing in reasonable detail the basis of such objections), then Buyer’s calculation amount of the Profiler Product Bookings shall be deemed final and conclusive; provided, however, in the event that Buyer fails to deliver to Seller an Earn Out Analysis Statement by February 13, 2011, Seller may deliver to Buyer an Earn-Out Objection Notice no later than March 5, 2011. (c) If Seller delivers the Earn Out Objection Notice within the periods specified Payment being agreed or determined in Section 3.4(b), then Buyer and Seller shall endeavor in good faith to resolve the objections, for a period not to exceed 10 days from the date of delivery of the Earn Out Objection Notice. If at the end of the 10-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to an accounting firm or certified public account (the “Referee”) mutually acceptable to Buyer and Seller. The Referee shall determine any unresolved items within 20 days after the objections that remain in dispute are submitted to it. If any remaining objections are submitted to the Referee for resolution, (i) each party shall furnish to the Referee such work papers and other documents and information relating to such objections as the Referee may request and are available to that party (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination accordance with the Referee; (ii) to the extent that a value has been assigned to provisions of this Schedule. Payment of any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; and (iii) the determination by the Referee as set forth in a written notice delivered to both parties by the Referee, shall be made Earn-Out Payment in accordance with this Agreement and clause shall be binding a good and conclusive valid discharge of the Buyer’s obligation to pay the sum in question and the Buyer shall not be concerned to see the application of the monies so paid. 2.5 Except as permitted under paragraph 8 of this Schedule, the Earn-Out Payment shall be paid without deduction set off or counter claim and if not paid in full on the parties and due date the Earn-Out Payment shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof. (d) If bear interest at the Referee awards a majority rate of 4% per annum above the base lending rate of Lloyds Bank for the time being from the due date until the date of actual payment of the dollar value of the items actually in dispute and to be resolved by the Referee to Seller, Buyer shall pay the fees and expenses of the Referee. If the Referee awards a majority of the dollar value of the items actually in dispute and to be resolved by the Referee to Buyer, Seller shall pay the fees and expenses of the Referee. Otherwise, such fees and expenses shall be allocated to and borne equally by Buyer and SellerEarn-Out Payment.