further right to make any claims against the Purchaser in
respect of any element of Earn-Out EBITDA that the Principal Equity Holder
raised or could have raised in the Earn-Out EBITDA Notice of Objection. The
Principal Equity Holder and the Purchaser shall each pay their own costs and
expenses incurred under this Section 2.13. The Independent Accounting Firm shall
allocate to Purchaser the portion of its fees, costs and expenses equal to the
portion of the contested amount of the Earn-Out Payment that is actually awarded
to Principal Equity Holder and shall allocate the remainder of its fees, costs
and expenses to the Principal Equity Holder.
(d) For the purposes of this Agreement, "Final Earn-Out EBITDA" means
Earn-Out EBITDA: (i) as shown in the Estimated Earn-Out EBITDA Statement
delivered by the Purchaser to the Principal Equity Holder pursuant to
Section 2.13(a), if no Earn-Out EBITDA Notice of Objection with respect thereto
is timely delivered by the Principal Equity Holder to the Purchaser pursuant to
Section 2.13(b); or (ii) if an Earn-Out EBITDA Notice of Objection is so
delivered, (A) as agreed in writing
15
by the Principal Equity Holder and the Purchaser pursuant to Section 2.13(c) or
(B) in the absence of such agreement, as shown in the Independent Accounting
Firm's calculation delivered pursuant to Section 2.13(c).
(e) Concurrently with the Purchaser's delivery of the Estimated
Earn-Out EBITDA Statement, the Purchaser and Surviving Entity shall pay, or
cause to be paid, to the Principal Equity Holder, on behalf of the Equity
Holders, by wire transfer in immediately available funds, to an account
designated in writing by the Principal Equity Holder, an aggregate amount equal
to (i) an earn-out payment (an "Earn-Out Payment") according to the following
Earn-Out EBITDA thresholds (each, an "Earn-Out EBITDA Threshold"), minus
(ii) the Transaction Expenses set forth in Section 2.13(e) of the Company
Disclosure Schedule:
Earn-Out EBITDA
Earn-Out Payment
$0-$95,999,999
$ 0
$96,000,000
$ 10,000,000
$97,000,000
$ 20,000,000
$98,000,000
$ 30,000,000
$99,000,000
$ 40,000,000
$100,000,000 and above
$ 50,000,000
The Earn-Out Payment shall be increased proportionately to the extent the
Earn-Out EBITDA falls between Earn-Out EBITDA Thresholds; provided that in no
event shall an Earn-Out Payment be payable if the Earn-Out EBITDA is less than
$96,000,000. For the avoidance of doubt, in no event shall the Earn-Out Payment
be greater than $50,000,000.
(f) If Final Earn-Out EBITDA is greater than Earn-Out EBITDA set forth
in the Estimated Earn-Out EBITDA Statement by more than $150,000, Purchaser and
the Surviving Entity shall, within five Business Days after Final Earn-Out
EBITDA is determined, pay, or cause to be paid, to the Principal Equity Holder,
on behalf of the Equity Holders, by wire transfer in immediately available
funds, to an account designated in writing by the Principal Equity Holder, an
aggregate amount equal to the Earn-Out Adjustment, together with interest
thereon at the Prime Rate, calculated on the basis of the actual number of days
elapsed divided by 365, from the date on which the Estimated Earn-Out EBITDA
Statement