statements for such period multiplied by 1.2.
(iii)
Within five (5) business days after the Final Earnout EBITDA (as defined
below) for fiscal 2007 has been determined as set forth in Section 5.2(c)(iii)
below and if the Final Earnout EBITDA differs from the Estimated Earnout EBITDA,
then the Earnout Payment made to Hercules for fiscal 2007 shall be adjusted in
accordance with the calculation set forth in Section 5.2(b)(i). If the Final
Earnout EBITDA is greater than the Estimated Earnout EBITDA, the Company shall
pay Hercules an amount of cash equal to the difference calculated in accordance
with Section 5.2(b)(i). If the Final Earnout EBITDA is less than the Estimated
Earnout EBITDA, Hercules shall refund the Company an amount of cash equal to the
difference calculated in accordance with Section 5.2(b)(i).
(c)
General Provisions for Earnout Payments
.
(i)
For purposes of this Agreement, "Earnout EBITDA" for any fiscal year shall
have the meaning and be computed in the manner set forth in Schedule 5.2
attached hereto.
(ii)
The Earnout EBITDA of the Company for fiscal 2006 and 2007 shall be
determined promptly after the close of each fiscal year by an audit conducted by
the Company's independent registered public accountants unless the parties agree
to a mutually agreeable third-party firm of independent registered public
accountants (either, the "Earnout Accountant"); provided, however, that the
parties need not select the Earnout Accountant that calculates the 2006 Earnout
Payment for purposes of calculating the 2007 Earnout Payment. If the Company and
Hercules are unable to agree on the Earnout Accountant within five (5) business
days, then the independent registered public accountants for each of the Company
and Hercules, shall determine the Earnout Accountant. Copies of the Earnout
Accountant's report setting forth its computation of the Earnout EBITDA for each
fiscal year shall be submitted in writing to Hercules and the Company as soon as
practicable, and, unless either Hercules or the Company notifies the other
within forty-five (45) days after receipt of such reports that it objects to the
computation of the Earnout EBITDA set forth therein, the report shall be binding
and conclusive for the purposes of this Agreement. The Company and Hercules
shall have access to the books and records of the Company and to the Earnout
Accountant's workpapers during regular business hours to verify the computation
of Earnout EBITDA made by the Earnout Accountant.
(iii)
If either Hercules or the Company notifies the other in writing within
forty-five (45) days after receipt of the Earnout Accountant's report that it
objects to the computation of the Earnout EBITDA set forth therein, the amount
of the Earnout EBITDA for the fiscal year to which such report relates shall be
determined by negotiation between Hercules and the Company. If Hercules and the
Company are unable to reach agreement within thirty (30) business days after
such notification, the determination of the amount of the Earnout EBITDA for the
period in question shall be submitted to the Earnout Accountant for
determination, whose determination shall