Common use of Earnout Amount Clause in Contracts

Earnout Amount. As part of the Merger Consideration, Parent will pay the Earnout Amount in accordance with the provisions of this Section 1.7(b). (i) The Earnout Amount will be determined as follows: a) if the Company Bookings for the Determination Period are greater than or equal to $110,300,000, then the Earnout Amount will be $10,000,000. b) if the Company Bookings for the Determination Period are greater than or equal to $88,240,000, but less than $110,300,000, then the Earnout Amount will be equal to (1) a fraction, the numerator of which is the excess of the Company Bookings over $88,240,000, and the denominator of which is $22,060,000, multiplied by (2) $10,000,000. c) if the Company Bookings for the Determination Period are less than $88,240,000, then the Earnout Amount will be $0.” (ii) Within fifteen (15) business days following the completion of the Determination Period (i.e., on or before October 19, 2007), Parent will provide the Shareholder Representative with a certificate setting forth the Company Bookings for the Determination Period and the calculation of the Earnout Amount (the “Certificate”). (iii) Parent will provide the Shareholder Representative and its agents and representatives with reasonable access (with at least 48 hours prior notice) to the personnel, books and records of Parent and the Surviving Corporation to assist the Shareholder Representative in its review of Parent’s calculation of the Company Bookings. (iv) The Shareholder Representative shall notify Parent in writing (the “Dispute Notice”) within thirty (30) days after receiving Parent’s calculation of the Company Bookings or the Earnout Amount if the Shareholder Representative disagrees with Parent’s calculation of the Company Bookings or the Earnout Amount, and such notice (if given) shall set forth in reasonable detail the basis for such dispute and the dollar amounts involved and the Shareholder Representative’s calculation of the Company Bookings and Earnout Amount. (v) If no Dispute Notice is given within such thirty (30) day period, then Parent’s calculation of the Earnout Amount shall be final and binding upon the Parties and the Company Shareholders. (vi) Upon receipt of a Dispute Notice, Parent and the Shareholder Representative shall negotiate in good faith to resolve any disagreement with respect to the calculation of the Company Bookings. If Parent and the Shareholder Representative are unable to agree with respect to the calculation of the Company Bookings within thirty (30) days after the date of the Dispute Notice, Parent and the Shareholder Representative shall submit their disputes to an accounting firm mutually agreed upon by Parent and the Shareholder Representative for a binding resolution within thirty (30) days thereafter. The cost of such accounting firm shall be paid one-half by Parent and one-half by the Company Shareholders. (vii) Upon final determination of the Earnout Amount, a) Parent will pay to each of the Cash Shareholders an amount in cash equal to the Cash Shareholder’s Proportionate Interest in the Earnout Amount; and b) Parent will issue the Merger Note, in the form attached as Exhibit L, to the Shareholder Representative, as agent for the Carryover Shareholders. The principal amount of the Merger Note will be equal to the Earnout Amount, minus the amount of cash paid to the Cash Shareholders under (a) above. (viii) The interest rate under the Merger Note will be equal to the interest rate payable by Parent under the note issued pursuant to the First Priority Term Loan Facility (as such term is defined in the Financing Commitment Letter) with respect to LIBOR (as such term is defined in the Financing Commitment Letter) advances as of September 30, 2007. (ix) The Merger Note will mature and be payable upon the earlier of (a) six months after the original maturity date of the second priority facility entered into in connection with the Financing Transaction, and (b) thirty (30) days after the date on which Parent’s obligations under the credit facilities issued in connection with the Financing Transaction are repaid in full without the use of borrowed funds.

Earnout Amount. As part of the Merger Consideration, Parent will pay the Earnout Amount in accordance with the provisions of this Section 1.7(b). (i) The Earnout Amount will be determined as follows: a) if the Company Bookings Revenues for the Determination Measurement Period are greater than or equal to $110,300,00087,800,000, then the Earnout Amount will be $10,000,000. b) if the Company Bookings Revenues for the Determination Measurement Period are greater than or equal to $88,240,00070,240,000, but less than $110,300,00087,800,000, then the Earnout Amount will be equal to (1) a fraction, the numerator of which is the excess of the Company Bookings Revenues over $88,240,00070,240,000, and the denominator of which is $22,060,00017,560,000, multiplied by (2) $10,000,000. c) if the Company Bookings Revenues for the Determination Measurement Period are less than $88,240,00070,240,000, then the Earnout Amount will be $0.” (ii) Within fifteen (15) business days following the completion of the Determination Measurement Period (i.e., on or before October 19, 2007), Parent will provide the Shareholder Representative with a certificate setting forth the Company Bookings Revenues for the Determination Measurement Period and the calculation of the Earnout Amount (the “Certificate”). (iii) Parent will provide the Shareholder Representative and its agents and representatives with reasonable access (with at least 48 hours prior notice) to the personnel, books and records of Parent and the Surviving Corporation to assist the Shareholder Representative in its review of Parent’s calculation of the Company BookingsRevenues. (iv) The Shareholder Representative shall notify Parent in writing (the “Dispute Notice”) within thirty (30) days after receiving Parent’s calculation of the Company Bookings Revenues or the Earnout Amount if the Shareholder Representative disagrees with Parent’s calculation of the Company Bookings Revenues or the Earnout Amount, and such notice (if given) shall set forth in reasonable detail the basis for such dispute and the dollar amounts involved and the Shareholder Representative’s calculation of the Company Bookings Revenues and Earnout Amount. (v) If no Dispute Notice is given within such thirty (30) day period, then Parent’s calculation of the Earnout Amount shall be final and binding upon the Parties and the Company Shareholders. (vi) Upon receipt of a Dispute Notice, Parent and the Shareholder Representative shall negotiate in good faith to resolve any disagreement with respect to the calculation of the Company BookingsRevenues. If Parent and the Shareholder Representative are unable to agree with respect to the calculation of the Company Bookings Revenues within thirty (30) days after the date of the Dispute Notice, Parent and the Shareholder Representative shall submit their disputes to an accounting firm mutually agreed upon by Parent and the Shareholder Representative for a binding resolution within thirty (30) days thereafter. The cost of such accounting firm shall be paid one-half by Parent and one-half by the Company Shareholders. (vii) Upon final determination of the Earnout Amount, a) Parent will pay to each of the Cash Shareholders an amount in cash equal to the Cash Shareholder’s Proportionate Interest in the Earnout Amount; and b) Parent will issue the Merger Note, in the form attached as Exhibit L, to the Shareholder Representative, as agent for the Carryover Shareholders. The principal amount of the Merger Note will be equal to the Earnout Amount, minus the amount of cash paid to the Cash Shareholders under (a) above. (viii) The interest rate under the Merger Note will be equal to the interest rate payable by Parent under the note issued pursuant to the First Priority Term Loan Facility (as such term is defined in the Financing Commitment Letter) with respect to LIBOR (as such term is defined in the Financing Commitment Letter) advances as of September 30, 2007. (ix) The Merger Note will mature and be payable upon the earlier of (a) six months after the original maturity date of the second priority facility entered into in connection with the Financing Transaction, and (b) thirty (30) days after the date on which Parent’s obligations under the credit facilities issued in connection with the Financing Transaction are repaid in full without the use of borrowed funds.