but less than the Target Business EBITDA for that Earnout Period,
the Earnout Payment shall be an amount equal to (I) the Maximum Annual Earnout
Payment for that Earnout Period multiplied by (II) a fraction, the numerator of
which is the Business EBITDA for that Earnout Period in excess of the Minimum
Target Business EBITDA for that Earnout Period and the denominator of which is
the aggregate difference between the Target Business EBITDA for that Earnout
Period and the Minimum Target Business EBITDA for that Earnout Period or (C) if
the Business EBITDA for that Earnout Period is equal to or less than the Minimum
Target Business EBITDA for that Earnout Period, the Earnout Payment shall equal
zero (in the event that the Business EBITDA for an Earnout Period is less than
the Target Business EBITDA for that Earnout Period, it is referred to herein as
a "Business EBITDA Shortfall");
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(iii) if in either Earnout Period, the Business EBITDA for such Earnout Period
exceeds the Target Business EBITDA for the Earnout Period, such excess ("Excess
Business EBITDA") may be applied to the previous or subsequent Earnout Period in
which there was a Business EBITDA Shortfall in the following manner:
(A)
if the Excess Business EBITDA is applied to the previous Earnout
Period and if the sum of the Business EBITDA for that previous Earnout Period
plus the Excess Business EBITDA would have resulted in an Earnout Payment
greater than the Earnout Payment actually earned in the previous Earnout Period
as calculated under Section 2.5(a)(ii), Purchaser shall make a "catch-up"
payment (a "Catch-Up Payment") to Seller in an amount equal to (x) the Earnout
Payment that Seller would have earned in the previous Earnout Period if the
Excess Business EBITDA had applied to such Earnout Period less (y) the Earnout
Payment actually earned in the previous Earnout Period; and
(B)
if the Excess Business EBITDA is applied to the future Earnout
Period in which a Business EBITDA Shortfall exists, such excess shall be added
to the Business EBITDA for the later Earnout Period to determine the amount of
the Earnout Payment, if any, payable under Section 2.5(a)(ii);
(iv) notwithstanding anything in this Agreement to the contrary, in no event
shall Purchaser be obligated to pay to Seller aggregate Earnout Payments
(including any Catch-Up Payment) in excess of the Maximum Aggregate Earnout
Payments; and
(v)
the Earnout Payments and Catch-Up Payment, if any, are subject to set-off
in accordance with Sections 2.5(f) and 12.6.
(b)
Within ninety (90) days after the end of each Earnout Period,
Purchaser shall provide to Seller a statement, including work papers and
schedules supporting such statement certified by Purchaser's Chief Financial
Officer (each an "Earnout Statement"), setting forth Purchaser's calculation of
(i) the Business EBITDA for that Earnout Period; and (ii) the Earnout Payment
(and any Catch-Up Payment) for that Earnout Period based thereon.
(c)
Within thirty (30) days after an Earnout Statement is
delivered to Seller pursuant to Section 2.5(b), Seller shall complete its
examination