EBITDA for that Earnout Period
(a "Business EBITDA Shortfall"), the Earnout Payment shall be in an amount equal
to (I) the Maximum Annual Earnout Payment for such Earnout Period minus (II) the
product of (x) 2.0 and (y) the Business EBITDA Shortfall (the "Earnout Payment
Penalty") (provided, that in no event shall the Earnout Payment calculated
pursuant to this clause (B) be less than zero);
(iii)
if in the first Earnout Period, the Business EBITDA is less than the
Target Business EBITDA for such Earnout Period, but the Business EBITDA in the
second Earnout Period exceeds the Target Business EBITDA for the second Earnout
Period ("Excess Business EBITDA"), Purchasers shall make a "catch-up" payment (a
"Catch-Up Payment") to Sellers with respect to the first Earnout Period in an
amount equal to the lesser of (I) the Earnout Payment Penalty for the first
Earnout Period and (II) the product of (x) 2.0 and (y) the Excess Business
EBITDA (an illustrative calculation of Earnout Payments and Catch-Up Payments is
set forth on Schedule 2.3);
(iv)
if in the first Earnout Period, the Business EBITDA exceeds the Target
Business EBITDA, such excess shall be added to the Business EBITDA for the
second Earnout Period to determine whether the Target Business EBITDA for the
second Earnout Period is reached;
(v)
for the purpose of calculating Earnout Payments and Catch-Up
Payments, Business EBITDA shall include (A) income from the Business sold to
Purchasers at Closing and (B) income from Purchasers' ISO Business, but only if
Parent causes the Purchasers' ISO Business to be combined with the Partnership's
Business, as contemplated by Section 15.8;
(vi)
notwithstanding anything in this Agreement to the contrary, in no
event shall Purchasers be obligated to pay to Sellers aggregate Earnout Payments
(including any Catch-Up Payment) in excess of the Maximum Aggregate Earnout
Payments;
(vii)
the Earnout Payments and Catch-Up Payment, if any, are subject
to set-off in accordance with Section 12.6;
(viii)
for each Earnout Period, Purchasers shall make the
Earnout Payment (and any Catch-Up Payment) within ten (10) days after Parent's
public announcement of its financial results for such Earnout Period; and
(ix)
Purchasers shall provide Sellers with all supporting
documentation reasonably requested by Sellers for purposes of verifying
Purchasers' calculation of any Earnout Payment and Catch-Up Payment.
In the
event Purchasers and Sellers disagree as to the amount of an Earnout Payment or
Catch-Up Payment, such dispute shall be resolved in accordance with the
procedures described in Section 2.4(c).
(d)
All payments to be made pursuant to this Section 2.3 shall be by
the wire transfer of immediately available funds to an account designated by
Sellers in writing and shall be allocated between Sellers in accordance with
their Sellers' Percentage Interests.
2.4
Closing Balance Sheet.
(a)
Within ninety (90) days after the Closing,
Purchasers shall provide to Sellers (i) a balance sheet of the Business based
upon the Purchased Assets and Assumed Liabilities as of the Closing Date (the
"Final Closing Balance Sheet"); (ii) a statement of earnings