Common use of Earn Back Clause in Contracts

Earn Back. On the Calculation Date, the number of Underlying Shares held by the Fund (and, if this Warrant has been exercised in whole or in part by the Fund, the number of Shares obtained by the Fund upon exercise of this Warrant) shall be reduced by a number of Shares (the "Earn-Back Shares") determined on the basis of the Fund's IRR, as set forth below. At or prior to the Calculation Date, the Company shall notify the Fund of the Company's calculation of the number of Earn-Back Shares, and the Fund shall provide the Company with any information reasonably requested by the Company in connection with such calculation. If the Fund disagrees with the Company's calculation of the number of Earn-Back Shares, the Fund shall so notify the Company in writing within 10 days of receiving the Company's calculation, and, if the Fund and the Company do not agree on such calculation, then the Fund and the Company shall promptly appoint a mutually acceptable qualified independent accountant to determine the number of Earn-Back Shares. If such parties shall be unable to agree on such an accountant within 20 days of the receipt by the Fund of the Company's calculation, the number of Earn-Back Shares shall be determined by a panel of three independent accountants, one of whom shall be selected in good faith by the Company, another of whom shall be selected in good faith by the Fund, and the third of whom shall be selected by such other two accountants or, if such accountants shall be unable to agree upon a third accountant within 10 days of the selection date of the second of such two accountant, by the American Arbitration Association; provided, that if either party fails to select its accountant within 10 days after the expiration of the time period for selecting a single accountant, then the number of Earn-Back Shares shall be determined solely by the accountant selected by the other party. The accountant or accountants appointed pursuant to the foregoing procedure shall be instructed to determine the number of Earn-Back Shares within 30 days after the final appointment of all accountants, and such determination shall be final and binding upon the parties. If three accountants shall be appointed, then (a) if the median of the determinations of the accountants is an amount that is equal the mean of such determinations, then such mean shall constitute the determination of the accountants, and otherwise (b) the determination of the accountant that shall differ most from the other two accountants shall be excluded, the remaining two determinations shall be averaged and such average shall constitute the number of Earn-Back Shares. Each party shall bear its respective fees and expenses with respect to any accounting review and one-half of the fees and expenses of the accountants participating in any review. The Company shall cause one copy of the final determination of the accountants to be sent directly to the Fund. Following final determination of the number of Earn-Back Shares, the number of Underlying Shares held by the Fund shall be reduced by a number equal to the number of Earn-Back Shares. To the extent the number of Earn-Back Shares exceeds the Fund's number of Underlying Shares ("Shortfall Shares"), then the Fund shall be obligated, within 30 days following the final determination of the Earn-Back Shares, to return to the Company, for cancellation, a number of Shares equal to the number of Shortfall Shares. If the Fund no longer holds a number of Shares equal to the Shortfall Shares, the Fund shall pay to the Company an amount of cash equal to the amount received by the Fund upon disposition of such Shortfall Shares, based on the average per Share proceeds received by the Fund upon disposition of this Warrant and any Shares obtained upon exercise of this Warrant.

Earn Back. On If the Calculation DateRegulatory Escrow Account is released and paid to the Purchaser Indemnified Parties, then the number following provisions shall apply: (a) Within ninety (90) days following December 31, 2016 (provided that reasonable extensions of Underlying Shares held such periods will be agreed upon by the Fund (andCompany to the extent that First Tower Holdings LLC’s auditor is unable to complete its audit within such 90-day period), if this Warrant has been exercised in whole or in part by First Tower Holdings LLC shall deliver to the Fund, the number of Shares obtained by the Fund upon exercise of this Warrant) shall be reduced by a number of Shares Company an unaudited statement (the "“Earn-Back Shares"Statement”) determined setting forth in reasonable detail the calculation of Actual Earn-Back IRR. To the extent the Actual Earn-Back IRR, after taking into account the amount of the payment by the Purchaser Indemnified Parties pursuant to this sentence as a deduction from the Terminal Valuation, is equal to or greater than the Projected Earn-Back IRR, then concurrently with First Tower Holdings LLC’s delivery of any Earn-Back Statement, and subject to Section 2.09(e), the Purchaser Indemnified Parties shall severally and not jointly pay or cause to be paid to the Company, by wire transfer of immediately available funds to an account (or accounts) designated in writing by the Company (or, in the case of the ▇.▇. ▇▇▇ Gift Trust and the ▇▇▇▇ ▇. ▇▇▇ Gift Trust, by delivery of an equal number of Class A Shares if Class A Shares were released to the Purchaser Indemnified Parties from the Regulatory Escrow Account), such portion of the Earn-Back Payment Amount (up to 100%) as would allow the Actual Earn-Back IRR to be equal to or greater than the Projected Earn-Back IRR. (b) Upon receipt of the Earn-Back Statement from First Tower Holdings LLC, the Company shall have forty-five (45) days (provided that reasonable extensions of such periods will be agreed upon by First Tower Holdings LLC to the extent requested by the Company) to review the Earn-Back Statement (the “Earn-Back Review Period”). If the Company disagrees with First Tower Holdings LLC’s computation of Actual Earn-Back IRR on the basis of Earn-Back Statement, the Fund's IRRCompany may, as set forth below. At on or prior to the Calculation Datelast day of the Earn-Back Review Period, deliver a notice to First Tower Holdings LLC (the “Earn-Back Notice of Objection”), which sets forth the Company’s objection to First Tower Holdings LLC’s calculation of Actual Earn-Back IRR; provided, however, that the Earn-Back Notice of Objection shall include only objections based on (i) failure to conform the calculation of Actual Earn-Back IRR to the applicable definitions set forth in this Agreement, and (ii) mathematical errors in the computation of Actual Earn-Back IRR. Any Earn-Back Notice of Objection shall specify those items or amounts with which the Company disagrees, together with a written explanation in full detail of the reasons for disagreement with each such item or amount, and shall set forth the Company’s calculation of Actual Earn-Back IRR based on such objections. During the Earn-Back Review Period, First Tower Holdings LLC shall permit the Company at reasonable times during reasonable business hours and upon reasonable notice to review the working papers and other supporting documents, books and records relating to the determination of Actual Earn-Back IRR, and First Tower Holdings LLC shall make reasonably available (which shall not include any requirement to travel) any employees of First Tower Holdings LLC or its Subsidiaries responsible for the calculation of Actual Earn-Back IRR and the preparation of the Earn-Back Statement in order to respond to the reasonable inquiries of the Company. (c) Unless the Company delivers the Earn-Back Notice of Objection to First Tower Holdings LLC within the Earn-Back Review Period, the Company shall notify the Fund of the Company's be deemed to have accepted First Tower Holdings LLC’s calculation of the number of Actual Earn-Back SharesIRR on the Earn-Back Statement, and the Fund Earn-Back Statement shall provide be final, conclusive and binding on all parties hereto. If the Company delivers the Earn-Back Notice of Objection to First Tower Holdings LLC within the Earn-Back Review Period, the Company and First Tower Holdings LLC shall in good faith, during the thirty (30) days following such delivery or any mutually agreed extension thereof, attempt to reach agreement on the disputed items and amounts in order to determine Actual Earn-Back IRR. If, at the end of such 30-day period, the Company and First Tower Holdings LLC are unable to resolve all of the disputed items, they shall refer their remaining disputed items to a mutually agreed upon Independent Accountant within ten (10) Business Days of the end of such thirty (30) day period. The Company and First Tower Holdings LLC shall each submit their respective positions on the remaining disputed items to the Independent Accountant in writing and shall instruct the Independent Accountant promptly to review this Section 2.09 and such written submissions to determine solely with any information respect to the disputed items and amounts so submitted whether and to what extent, if any, the Actual Earn-Back IRR set forth in the Earn-Back Statement requires adjustment. The Independent Accountant shall base its determination solely on this Agreement and the written submissions by the Company and First Tower Holdings LLC and not on an independent review. The Company and First Tower Holdings LLC shall cooperate in all respects with the Independent Accountant in connection with its determination and shall make available to the Independent Accountant all relevant books and records and other items reasonably requested by the Independent Accountant, including the work papers of their respective accountants. As promptly as practicable, but in no event later than thirty (30) days after its retention, the Independent Accountant shall deliver to the Company in connection with such calculation. If and First Tower Holdings LLC a report which sets forth its resolution of the Fund disagrees with the Company's disputed items and amounts and its calculation of the number of Actual Earn-Back Shares, the Fund shall so notify the Company in writing within 10 days of receiving the Company's calculation, and, if the Fund and the Company do not agree on such calculation, then the Fund and the Company shall promptly appoint a mutually acceptable qualified independent accountant to determine the number of Earn-Back SharesIRR. If such parties shall be unable to agree on such an accountant within 20 days The decision of the receipt by the Fund of the Company's calculation, the number of Earn-Back Shares shall be determined by a panel of three independent accountants, one of whom shall be selected in good faith by the Company, another of whom shall be selected in good faith by the Fund, and the third of whom shall be selected by such other two accountants or, if such accountants shall be unable to agree upon a third accountant within 10 days of the selection date of the second of such two accountant, by the American Arbitration Association; provided, that if either party fails to select its accountant within 10 days after the expiration of the time period for selecting a single accountant, then the number of Earn-Back Shares shall be determined solely by the accountant selected by the other party. The accountant or accountants appointed pursuant to the foregoing procedure shall be instructed to determine the number of Earn-Back Shares within 30 days after the final appointment of all accountants, and such determination Independent Accountant shall be final and binding upon on the parties. If three accountants The Independent Accountant shall be appointed, then (a) if allocate its fees and expenses in accordance with the median percentage which the portion of the determinations contested amount not awarded to the Company bears to the amount actually contested by or on behalf of the accountants is an amount that is equal Company. (d) Except as otherwise expressly provided in the mean provisions of such determinations, then such mean shall constitute this Agreement relating to the determination of the accountants, and otherwise (b) the determination of the accountant that shall differ most from the other two accountants shall be excluded, the remaining two determinations shall be averaged and such average shall constitute the number of Earn-Back Shares. Each party shall bear its respective fees and expenses with respect to any accounting review and one-half Payment Amount, each item included in the calculation of the fees and expenses of the accountants participating in any review. The Company shall cause one copy of the final determination of the accountants to be sent directly to the Fund. Following final determination of the number of Actual Earn-Back SharesIRR shall be calculated in accordance with GAAP and (to the extent consistent with GAAP) in a manner consistent with the same accounting principles, practices, methodologies and policies used in the preparation of the Company Financial Statements delivered pursuant to Section 3.07(a)(i). (e) Notwithstanding anything to the contrary contained herein, the number of Underlying Shares held aggregate amount owed by the Fund Purchaser Indemnified Parties under this Section 2.09 shall not exceed the amount actually received by the Purchaser Indemnified Parties from the Regulatory Escrow Account. (f) In the event First Tower Holdings LLC shall prior to December 31, 2016: (i) sell, transfer, assign or otherwise dispose of (directly or indirectly) all or substantially all of the assets used primarily in the business of the Company’s Subsidiaries to any Person who is not an Affiliate of First Tower Holdings LLC, (ii) consummate any consolidation, merger, combination or other similar transaction in which majority voting control of First Tower Holdings LLC is transferred to any Person who is not an Affiliate of First Tower Holdings LLC, or (iii) sell, transfer, assign or otherwise dispose of (directly or indirectly) equity interests in First Tower Holdings LLC if as a result of such sale, transfer, assignment or disposition, majority voting control of First Tower Holdings LLC is transferred to any Person who is not an Affiliate of First Tower Holdings LLC, then, in each case (any of the events in clauses (i) through (iii), a “Change of Control Event”), the calculations to be made and the actions to be taken pursuant to the other paragraphs of this Section 2.09 shall be reduced by a number equal accelerated, with the date of the end of the most recent fiscal quarter prior to the number Change of Control Event substituted for December 31, 2016 and the value of the consideration received by First Tower Holdings LLC and its Affiliates in connection with such Change of Control Event (calculated on a pro forma basis as though such Change of Control Event was a sale of 100% of the assets or membership interests in First Tower Holdings LLC on a fully diluted basis for the same per membership unit price paid in such Change of Control Event and as though Purchaser had received its pro rata portion of the proceeds) being treated as the Terminal Valuation, subject to such adjustments to be negotiated in good faith by First Tower Holdings LLC and the Company as may be necessary to preserve the original intent of this Section 2.09. (g) During the Earn-Back Shares. To Period, First Tower Holdings LLC covenants that it will use its commercially reasonable efforts to (i) continue the extent Company’s current efforts to promote and grow the number business of Earn-Back Shares exceeds First Tower Holdings LLC and its Subsidiaries, (ii) maintain books and records in the Fund's number ordinary course of Underlying Shares business, ("Shortfall Shares")iii) refrain from otherwise taking any actions in bad faith and either with the purpose, then or that would reasonably be expected to have the Fund shall be obligatedeffect, within 30 days following of avoiding or reducing the final determination potential receipt of the Earn-Back SharesPayment Amount, to return to the Company, for cancellation, a number of Shares equal to the number of Shortfall Shares. If the Fund no longer holds a number of Shares equal to the Shortfall Shares, the Fund shall pay and (iv) provide to the Company an amount within ninety (90) days following the end of cash equal each fiscal year through December 31, 2015, a statement setting forth Net Income, EBITDA, First Tower Payments and investments into First Tower Holdings LLC or any of its Subsidiaries by Purchaser or any of its Affiliates for such fiscal year, and reasonable access during normal business hours to personnel and accountants and books and records of First Tower Holdings LLC and its Subsidiaries in order to verify the amount received by the Fund upon disposition of information in such Shortfall Shares, based on the average per Share proceeds received by the Fund upon disposition of this Warrant and any Shares obtained upon exercise of this Warrantstatement.