Common use of Earnout Statement Clause in Contracts

Earnout Statement. (i) Not later than 60 days following the last day of the Earnout Period, Buyer or its representatives shall prepare and deliver to Seller a written statement, prepared in accordance with GAAP using, to the extent in accordance with GAAP, the same accounting methods, principles, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Financial Statements, with such adjustments thereto set forth in the definition of Adjusted EBITDA (the “Earnout Statement”) setting forth Buyer’s calculation of the Earnout Adjusted EBITDA and the Reference Adjusted EBITDA and the resulting Earnout Amount, if any. Upon receipt of an Earnout Statement, Seller and its accountants will be given reasonable access upon reasonable notice to Buyer’s relevant books, records, workpapers and personnel during business hours for the purpose of verifying the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount. (ii) Prior to the date which is 30 days after Buyer’s delivery of the Earnout Statement and the information and access referenced in the foregoing clause (i) (the “Earnout Protest Deadline”), Seller may deliver written notice to Buyer (an “Earnout Protest Notice”) setting forth any objections which Seller may have to the Earnout Statement. The sole permissible grounds for objection shall be that the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and/or the Earnout Amount set forth on such Earnout Statement were not calculated in accordance with their respective definitions. The Earnout Protest Notice shall specify in reasonable detail any contested amounts and the basis therefor and shall include a schedule setting forth Seller’s determination of the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount, if any. If an Earnout Protest Notice is not delivered prior to the Earnout Protest Deadline, the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and the resulting Earnout Amount, if any, as set forth on such Earnout Statement shall be final, binding and non-appealable by the Seller Parties. If an Earnout Protest Notice is delivered prior to the Earnout Protest Deadline, any amounts not disputed therein shall be final, binding and non-appealable by the Seller Parties. (iii) If Seller delivers an Earnout Protest Notice, Buyer and Seller shall confer and attempt to resolve any disagreement with respect to an Earnout Statement within 30 days following Buyer’s receipt of such Earnout Protest Notice. If Buyer and Seller are unable to resolve any such disagreement within such 30 day period, then any matters that remain in dispute will be referred to the Accountant for final determination within 45 days after such referral. The determination by the Accountant of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountant’s independent review. Any determination by the Accountant shall not be outside the range defined by the respective amounts in such Earnout Statement proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Earnout Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealable by the Parties. Each of Buyer and Seller shall execute and deliver a customary engagement letter as may be requested by the Accountant, and each of Buyer, on the one hand, and Seller, on the other hand, shall bear that percentage of the fees and expenses of the Accountant equal to the proportion (expressed as a percentage and determined by the Accountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountant.

Earnout Statement. 2.1 Unless an Acceleration Event (ias defined in Section 3 hereof) Not later than 60 days following shall have occurred, as promptly as practicable after the last day end of the each Earnout Period, Buyer or the Sellers’ Committee will cause an income statement of Stealth for such Earnout Period and a statement setting forth the Sellers’ Committee’s calculation of the Actual Pre-Tax Income of Stealth for such Earnout Period (collectively, as may be revised by the Sellers’ Committee’s accountants, the “Preliminary Earnout Statement”) to be prepared, and will cause its representatives accountants to review (and revise if necessary) the Preliminary Earnout Statement and to prepare a report based on such Preliminary Earnout Statement and the provisions of this Agreement pertaining to the determination of Actual Pre-Tax Income, as so reviewed (and revised in necessary), setting forth its calculation of the Actual Pre-Tax Income of Stealth for such Earnout Period. As promptly as practicable, but no later than sixty (60) days after the end of such Earnout Period, the Sellers’ Committee will cause the Preliminary Earnout Statement together with the report of Stealth’s accountants as to the Actual Pre-Tax Income for such Earnout Period to be delivered to the Buyer. The income statement to be prepared as part of each Preliminary Earnout Statement (each “Preliminary Income Statement”) shall prepare and deliver to Seller a written statement, prepared (x) fairly present in all material respects the pre-tax income of Stealth for such Earnout Period in accordance with GAAP using, to the extent in accordance generally accepted accounting principles (“GAAP”) applied on a basis consistent with GAAP, the same accounting methods, principles, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, as were those used in the preparation of the Financial Statementsincome statement of Stealth for the one-year period ended December 31, with such adjustments thereto set forth in 2004 as prepared by Micronetics’ auditors and previously delivered to the definition of Adjusted EBITDA Sellers’ Committee (the “Earnout December 31, 2004 Income Statement”), (y) setting forth Buyer’s include line items substantially consistent with those in the December 31, 2004 Income Statement, and (z) be prepared in accordance with accounting practices consistent with those used in the preparation of the December 31, 2004 Income Statement; provided, however, that the Preliminary Income Statement shall exclude the effect of any application of so-called “push down” and purchase accounting to the transactions contemplated by the Stock Purchase Agreement. Whenever used in this Agreement, the term accounting practices includes accounting methods and policies. The cost of the preparation of each Preliminary Earnout Statement shall be borne equally by the Sellers. 2.2 The parties hereto agree that they will cooperate and assist in the preparation of the Preliminary Income Statement for each Earnout Period and the calculation of Actual Pre-Tax Income for each Earnout Period and in the Earnout Adjusted EBITDA and conduct of the Reference Adjusted EBITDA and review referred to in this Section 2, including without limitation the resulting Earnout Amount, if any. Upon receipt making available to the extent necessary of an Earnout Statement, Seller and its accountants will be given reasonable access upon reasonable notice to Buyer’s relevant books, records, workpapers work papers and personnel during business hours for the purpose of verifying the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amountpersonnel. (ii) Prior to the date which is 30 days after Buyer’s delivery of the Earnout Statement and the information and access referenced in the foregoing clause (i) (the “Earnout Protest Deadline”), Seller may deliver written notice to Buyer (an “Earnout Protest Notice”) setting forth any objections which Seller may have to the Earnout Statement. The sole permissible grounds for objection shall be that the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and/or the Earnout Amount set forth on such Earnout Statement were not calculated in accordance with their respective definitions. The Earnout Protest Notice shall specify in reasonable detail any contested amounts and the basis therefor and shall include a schedule setting forth Seller’s determination of the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount, if any. If an Earnout Protest Notice is not delivered prior to the Earnout Protest Deadline, the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and the resulting Earnout Amount, if any, as set forth on such Earnout Statement shall be final, binding and non-appealable by the Seller Parties. If an Earnout Protest Notice is delivered prior to the Earnout Protest Deadline, any amounts not disputed therein shall be final, binding and non-appealable by the Seller Parties. (iii) If Seller delivers an Earnout Protest Notice, Buyer and Seller shall confer and attempt to resolve any disagreement with respect to an Earnout Statement within 30 days following Buyer’s receipt of such Earnout Protest Notice. If Buyer and Seller are unable to resolve any such disagreement within such 30 day period, then any matters that remain in dispute will be referred to the Accountant for final determination within 45 days after such referral. The determination by the Accountant of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountant’s independent review. Any determination by the Accountant shall not be outside the range defined by the respective amounts in such Earnout Statement proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Earnout Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealable by the Parties. Each of Buyer and Seller shall execute and deliver a customary engagement letter as may be requested by the Accountant, and each of Buyer, on the one hand, and Seller, on the other hand, shall bear that percentage of the fees and expenses of the Accountant equal to the proportion (expressed as a percentage and determined by the Accountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountant.

Earnout Statement. On or before the date that is ninety (90) days following the end of the Earnout Measurement Period, the Surviving Entity (i) Not later than 60 days following shall deliver or cause to be delivered to the last day Stockholders an audited consolidated balance sheet and audited consolidated statements of income, equity and cash flows for the Company for the Earnout Measurement Period, Buyer or its representatives shall prepare and deliver to Seller a written statement, prepared in accordance with GAAP usingthe Accounting Principles, and (ii) shall calculate and deliver or cause to be calculated and delivered to the extent in accordance with GAAP, the same accounting methods, principles, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Financial Statements, with such adjustments thereto set forth in the definition of Adjusted EBITDA Stockholders a statement (the an “Earnout Statement”) setting forth Buyerin reasonable detail the Surviving Entity’s good faith calculation of Operating Profit for the Earnout Adjusted EBITDA Measurement Period. The Stockholders may review each Earnout Statement and may make inquiries of the Surviving Entity, the Company and their respective Representatives, and the Reference Adjusted EBITDA Surviving Entity and the resulting Earnout AmountCompany will make available to the Stockholders, if any. Upon receipt of an Earnout Statementas reasonably requested, Seller and its accountants will be given reasonable access upon reasonable notice to Buyer’s relevant books, records, workpapers personnel and personnel during business hours for Representatives of the purpose of verifying Company or the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount. (ii) Prior to the date which is 30 days after Buyer’s delivery Surviving Entity involved in preparation of the Earnout Statement and access to all books, work papers, schedules or records of the information and access referenced Company, the Surviving Entity or their Representatives that are within their possession or control, in each case to the foregoing clause (i) (the “Earnout Protest Deadline”), Seller may deliver written notice extent necessary to Buyer (an “Earnout Protest Notice”) setting forth any objections which Seller may have to evaluate the Earnout Statement. The sole permissible grounds If, within sixty (60) days following receipt of the final Earnout Statement setting forth the Surviving Entity’s calculation of the Operating Profit for objection the Earnout Measurement Period, the Stockholders do not deliver to the Surviving Entity written notice of a dispute (in accordance with the following sentence) with respect to the calculations set forth in the Earnout Statement, then the Operating Profit for the Earnout Measurement Period set forth in the Earnout Statement shall be that deemed to be the final Operating Profit for the Earnout Adjusted EBITDAMeasurement Period for all purposes under this Agreement and the Surviving Entity shall promptly pay or cause to be paid to the Stockholders, Reference Adjusted EBITDA and/or the Earnout Amount set forth on such Earnout Statement were not calculated in accordance with their respective definitions. The Earnout Protest Notice shall specify in reasonable detail any contested amounts and the basis therefor and shall include a schedule setting forth Seller’s determination of the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount, if any. If an Earnout Protest Notice is not delivered prior to the Earnout Protest DeadlinePro Rata Shares, the applicable Earnout Adjusted EBITDA, Reference Adjusted EBITDA and the resulting Earnout AmountPayment, if any, as set forth on such Earnout Statement shall be final, binding and non-appealable by the Seller Parties. If an Earnout Protest Notice is delivered prior to for the Earnout Protest Deadline, any amounts not disputed therein shall be final, binding and non-appealable by the Seller Parties. (iii) If Seller delivers an Earnout Protest Notice, Buyer and Seller shall confer and attempt to resolve any disagreement with respect to an Earnout Statement within 30 days following Buyer’s receipt of such Earnout Protest Notice. If Buyer and Seller are unable to resolve any such disagreement within such 30 day period, then any matters that remain in dispute will be referred to the Accountant for final determination within 45 days after such referral. The determination by the Accountant of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountant’s independent review. Any determination by the Accountant shall not be outside the range defined by the respective amounts in such Earnout Statement proposed by Buyer and Seller’s proposed adjustments thereto Measurement Period as set forth in the Earnout Protest NoticeStatement. If the Stockholders provide the Surviving Entity a written notice of dispute that objects to the Surviving Entity’s calculation of Operating Profit for the Earnout Measurement Period, specifying the basis for such objection in reasonable detail and absent manifest mathematical error sets forth the proposed modification to such determination Earnout Statement, such dispute shall be finalresolved in the same manner as any dispute regarding the Post-Closing Statement in accordance with the provisions of Section 2.6(c); provided, binding however, that the Earnout Payment shall be made no later than five (5) Business Days after the date the Operating Profit for the Earnout Measurement Period and non-appealable by Earnout Payment are finally determined (the Parties. Each of Buyer and Seller shall execute and deliver a customary engagement letter as may be requested by the Accountant“Earnout Payment Date”), and each of Buyer, on the one hand, and Seller, on the other hand, shall bear that percentage of the fees and expenses of the Accountant equal to the proportion (expressed as a percentage and determined by the Accountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountantwithout deduction or offset.

Earnout Statement. (i) Not later than 60 Within 45 days following July 3, 2011, October 2, 2011, and the last day end of the Earnout Period, Buyer or its representatives Parent shall prepare and deliver to Seller (i) a written statement, prepared in accordance with GAAP using, to the extent in accordance with GAAP, the same accounting methods, principles, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Financial Statements, with such adjustments thereto set forth in the definition of Adjusted EBITDA statement (the an “Earnout Statement”) setting forth Buyerto the Representative containing Parent’s calculation of the Earnout Adjusted EBITDA Consideration payable at any such time as a result of the financial results achieved by the Surviving Company to any such above referenced date during the Earnout Period (the “Preliminary Earnout Consideration”) and (ii) reasonable records and work papers related to the Reference Adjusted EBITDA and the resulting Earnout Amount, if any. Upon receipt of an calculations set forth on any such Earnout Statement, Seller and its accountants will be given reasonable access upon reasonable notice to Buyer’s relevant books, records, workpapers and personnel during business hours for the purpose of verifying the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount. (ii) Prior Parent shall permit the Representative and its accountants to review promptly upon reasonable request, on-site or otherwise, during normal business hours, all records and work papers prepared or used by Parent in connection with the date which is 30 days after Buyer’s delivery preparation of the each Earnout Statement and to take copies of the information same. Parent shall use commercially reasonable efforts to respond to inquiries from the Representative related to such review. Parent shall use reasonable efforts to provide access to the books and access referenced records of the Company to the Representative electronically in the foregoing clause (i) (the “Earnout Protest Deadline”), Seller may deliver written notice to Buyer (an “Earnout Protest Notice”) setting forth any objections which Seller may have to connection with its review of the Earnout Statement. The sole permissible grounds for objection Representative shall be that have thirty (30) Business Days after receipt of the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and/or Statement (the Earnout Amount set forth on “Dispute Period”) to dispute any or all amounts or elements of such Earnout Statement were not calculated in accordance with their respective definitions(“Dispute”). The Earnout Protest Notice Representative shall specify provide to Parent, prior to the end of the Dispute Period, written notice of Disputes, if any (a “Dispute Notice”), setting forth in reasonable detail any contested the amounts and the basis therefor and shall include a schedule setting forth Seller’s determination of included in the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and Statement with which the resulting Earnout AmountRepresentative disagrees, if any. If an Earnout Protest the Representative does not deliver a Dispute Notice is not delivered to Parent prior to the Earnout Protest Deadlineend of the Dispute Period, the Earnout Adjusted EBITDAStatement for the Earnout Period shall be deemed to be final and binding upon Parent, Reference Adjusted EBITDA the Representative and the resulting Earnout AmountSecurityholders in the form in which it was delivered to the Representative by Parent. If the Representative delivers to Parent a Dispute Notice prior to the end of the Dispute Period, if any, as the Parties shall follow the dispute resolution procedures set forth on such in Schedule 1.13(g). For purposes of this Agreement, “Final Determination” of an Earnout Statement shall be finalmean the final determination pursuant to this Section 1.13 and Schedule 1.13(a) and, binding and non-appealable by the Seller Parties. If an Earnout Protest Notice is delivered prior to the Earnout Protest Deadlineextent applicable, any amounts not disputed therein shall be final, binding and non-appealable by the Seller PartiesSection 1.13(g). (iii) If Seller delivers an Earnout Protest Notice, Buyer and Seller shall confer and attempt to resolve any disagreement with respect to an Earnout Statement within 30 days following Buyer’s receipt of such Earnout Protest Notice. If Buyer and Seller are unable to resolve any such disagreement within such 30 day period, then any matters that remain in dispute will be referred to the Accountant for final determination within 45 days after such referral. The determination by the Accountant of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountant’s independent review. Any determination by the Accountant shall not be outside the range defined by the respective amounts in such Earnout Statement proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Earnout Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealable by the Parties. Each of Buyer and Seller shall execute and deliver a customary engagement letter as may be requested by the Accountant, and each of Buyer, on the one hand, and Seller, on the other hand, shall bear that percentage of the fees and expenses of the Accountant equal to the proportion (expressed as a percentage and determined by the Accountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountant.

Earnout Statement. 2.1 Unless an Acceleration Event (ias defined in Section 3 hereof) Not later than 60 days following shall have occurred, as promptly as practicable after the last day end of the each Earnout Period, Buyer or the Sellers’ Committee will cause an income statement of Stealth for such Earnout Period and a statement setting forth the Sellers’ Committee’s calculation of the Actual Pre-Tax Income of Stealth for such Earnout Period (collectively, as may be revised by the Sellers’ Committee’s accountants, the “Preliminary Earnout Statement”) to be prepared, and will cause its representatives accountants to review (and revise if necessary) the Preliminary Earnout Statement and to prepare a report based on such Preliminary Earnout Statement and the provisions of this Agreement pertaining to the determination of Actual Pre-Tax Income, as so reviewed (and revised in necessary), setting forth its calculation of the Actual Pre-Tax Income of Stealth for such Earnout Period. As promptly as practicable, but no later than sixty (60) days after the end of such Earnout Period, the Sellers’ Committee will cause the Preliminary Earnout Statement together with the report of Stealth’s accountants as to the Actual Pre-Tax Income for such Earnout Period to be delivered to the Buyer. The income statement to be prepared as part of each Preliminary Earnout Statement (each “Preliminary Income Statement”) shall prepare and deliver to Seller a written statement, prepared (x) fairly present in all material respects the pre-tax income of Stealth for such Earnout Period in accordance with GAAP using, to the extent in accordance generally accepted accounting principles (“GAAP”) applied on a basis consistent with GAAP, the same accounting methods, principles, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, as were those used in the preparation of the Financial Statementsincome statement of Stealth for the one-year period ended December 31, with such adjustments thereto set forth in 2004 as prepared by Micronetics’ auditors and previously delivered to the definition of Adjusted EBITDA Sellers’ Committee (the “Earnout December 31, 2004 Income Statement”), (y) setting forth Buyer’s include line items substantially consistent with those in the December 31, 2004 Income Statement, and (z) be prepared in accordance with accounting practices consistent with those used in the preparation of the December 31, 2004 Income Statement; provided, however, that the Preliminary Income Statement shall exclude the effect of any application of so-called “push down” and purchase accounting to the transactions contemplated by the Stock Purchase Agreement. Whenever used in this Agreement, the term accounting practices includes accounting methods and policies. The cost of the preparation of each Preliminary Earnout Statement shall be borne equally by the Sellers. 2.2 The parties hereto agree that they will cooperate and assist in the preparation of the Preliminary Income Statement for each Earnout Period and the calculation of Actual Pre-Tax Income for each Earnout Period and in the Earnout Adjusted EBITDA and conduct of the Reference Adjusted EBITDA and review referred to in this Section 2, including without limitation the resulting Earnout Amount, if any. Upon receipt making available to the extent necessary of an Earnout Statement, Seller and its accountants will be given reasonable access upon reasonable notice to Buyer’s relevant books, records, workpapers work papers and personnel during business hours for the purpose of verifying the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amountpersonnel. 2.3 Buyer may dispute any amounts relating to Actual Pre-Tax Income reflected on (including any amounts omitted from) a Preliminary Earnout Statement; provided, however, that Buyer shall have notified the Sellers’ Committee in writing (the “Dispute Notice”) of the disputed items not later than the later to occur of (a) the expiration of 30 calendar days of the delivery to Buyer of the Preliminary Earnout Statement, and (b) the expiration of 100 days after March 31, 2006 or March 31, 2007, as the case may be. Each Dispute Notice shall have set forth, in such written notice, (i) the amount in dispute for each such item and (ii) Prior to the date which is 30 days after basis, in reasonable detail, for each such dispute. Whenever used in this Agreement, the term “accounting practices” includes accounting methods and policies. 2.4 Buyer’s delivery of the Earnout Statement accountants and the information and access referenced Sellers’ Committee’s accountants shall attempt to reconcile any items timely raised in the foregoing clause (i) (the “Earnout Protest Deadline”), Seller may deliver Dispute Notice. Any written notice to Buyer (an “Earnout Protest Notice”) setting forth resolution by such accountants of any objections which Seller may have to the Earnout Statement. The sole permissible grounds for objection shall be that the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and/or the Earnout Amount set forth on such Earnout Statement were not calculated in accordance with their respective definitions. The Earnout Protest Notice shall specify in reasonable detail any contested disputed amounts and the basis therefor and shall include a schedule setting forth Seller’s determination of the Earnout Adjusted EBITDA and Reference Adjusted EBITDA and the resulting Earnout Amount, if any. If an Earnout Protest Notice is not delivered prior to the Earnout Protest Deadline, the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and the resulting Earnout Amount, if any, as set forth on such Earnout Statement shall be final, binding and non-appealable conclusive on the parties. If any such written resolution by such accountants does not resolve all such disputed items raised by Buyer in the Dispute Notice permitted to be raised by Section 2.3 within 10 calendar days after receipt by the Seller PartiesSellers’ Committee of Buyer’s Dispute Notice, the items timely raised in the Dispute Notice by Buyer permitted to be raised by Section 2.3 that remain in dispute (the “Remaining Disputed Items”) shall be submitted for resolution to an Independent Accounting Firm. If “Independent Accounting Firm” means an Earnout Protest Notice is delivered prior accounting firm mutually appointed by the Sellers’ Committee and Buyer, preferably one of national reputation. Prior to its engagement, the Earnout Protest DeadlineIndependent Accounting Firm shall agree to (i) resolve any Remaining Disputed Items and no others; and (ii) state in its written report referred to below that, any amounts not disputed therein in its good faith judgment, it has resolved all Remaining Disputed Items in accordance with the provisions of this Section 2. The written report of the Independent Accounting Firm shall be final, binding and non-appealable by the Seller Parties. (iii) If Seller delivers an Earnout Protest Notice, conclusive on Buyer and Seller Sellers. The Independent Accounting Firm shall confer have the privileges and attempt to resolve any disagreement immunities of arbitrators and shall act in the capacity as arbitrators in connection with respect to an Earnout Statement within 30 days following Buyer’s receipt the undertakings described above in this Section 2.4. The fees and disbursements of such Earnout Protest Notice. If the Independent Account Firm shall be allocated between Buyer and Seller are unable to resolve any such disagreement within such 30 day period, then any matters the Sellers in the proportion that remain in dispute will be referred the amounts submitted to the Accountant for final determination within 45 days after such referral. The determination by the Accountant of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountant’s independent review. Any determination by the Accountant shall not be outside the range defined by the respective amounts in such Earnout Statement proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Earnout Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealable by the Parties. Each of Buyer and Seller shall execute and deliver a customary engagement letter Independent Account Firm that are unsuccessfully disputed (as may be requested by the Accountant, and each of Buyer, on the one hand, and Seller, on the other hand, shall bear that percentage of the fees and expenses of the Accountant equal to the proportion (expressed as a percentage and finally determined by the AccountantIndependent Account Firm) of by each such party bears to the dollar value of the total disputed amounts determined in favor of the other party by the Accountantitems so submitted.

Earnout Statement. (iA) Not later than 60 days ten (10) Business Days following the last day end of the Earnout Performance Period, Buyer Subversive or its representatives Representatives shall prepare and deliver to Seller the Shareholders’ Representative a written statement, prepared in accordance with GAAP using, to the extent in accordance with GAAP, the same accounting methods, principles, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Financial Statements, with such adjustments thereto set forth in the definition of Adjusted EBITDA statement (the an “Earnout Statement”) ), setting forth BuyerSubversive’s calculation of the Total Capital, Capital Proceeds, Total Capital Shares, WIP, Price Earnout Adjusted EBITDA Consideration, if any, and the Reference Adjusted EBITDA and the resulting Proceeds Earnout AmountConsideration, if any. Upon receipt of an Earnout Statement, Seller the Shareholders’ Representative, its officers, managers, employees consultants, financial advisors, counsel, accountants, and its accountants will other representatives and agents shall be given provided with reasonable access upon reasonable notice to Buyer’s relevant booksthe financial books and records work papers, records, workpapers accountants and personnel of Subversive during business hours for the purpose of verifying the Earnout Adjusted EBITDA and Reference Adjusted EBITDA calculation of the foregoing and the resulting Earnout AmountConsideration, as applicable. (iiB) Prior to the date which is 30 thirty (30) days after Buyer’s delivery receipt of the an Earnout Statement and by the information and access referenced in the foregoing clause Shareholders’ Representative (i) (the an “Earnout Protest Deadline”), Seller the Shareholders’ Representative may deliver written notice to Buyer Subversive (an “Earnout Protest Notice”) setting forth any objections which Seller the Shareholders’ Representative may have to the Earnout Statement; provided, however, that such 30-day period and Earnout Protest Deadline shall toll during any time that Subversive fails to comply with Section 2.04(b)(ii)(A). The sole permissible grounds for objection shall be that the Earnout Adjusted EBITDA, Reference Adjusted EBITDA and/or the Earnout Amount Consideration set forth on such the Earnout Statement were was not calculated in accordance with their respective definitionsits definition. The Earnout Protest Notice shall specify in reasonable detail any contested amounts and the basis therefor and shall include a schedule setting forth Sellerthe Shareholders’ Representative’s determination of the Total Capital, Capital Proceeds, Total Capital Shares, WIP, Price Earnout Adjusted EBITDA Consideration, if any, and Reference Adjusted EBITDA and the resulting Proceeds Earnout AmountConsideration, if any. If an Earnout Protest Notice is not delivered prior to the Earnout Protest DeadlineDeadline Total Capital, the Capital Proceeds, Total Capital Shares, WIP, Price Earnout Adjusted EBITDAConsideration, Reference Adjusted EBITDA if any, and the resulting Proceeds Earnout AmountConsideration, if any, as set forth on such Earnout Statement shall be final, binding and non-appealable by the Seller PartiesShareholders’ Representative or the ▇▇▇▇▇▇ Shareholders. If an Earnout Protest Notice is delivered prior to the applicable Earnout Protest Deadline, any such amounts not disputed therein shall be final, binding and non-appealable by the Seller PartiesShareholders’ Representative or the ▇▇▇▇▇▇ Shareholders and shall be paid within ten (10) Business Days thereafter in accordance with Section 2.04(b)(iii). (iiiC) If Seller delivers an Earnout Protest Notice, Buyer Subversive and Seller shall confer and attempt the Shareholders’ Representative are unable to resolve any disagreement with respect strictly to an the calculations made in the determination of Capital Proceeds, Closing Net Proceeds, Price Earnout Consideration, Proceeds Earnout Consideration, Total Capital, Total Capital Shares or WIP in the Earnout Statement within 30 thirty (30) days following BuyerSubversive’s receipt of such the Earnout Protest Notice. If Buyer and Seller are unable to resolve any such disagreement within such 30 day period, then any matters that remain only the amounts in dispute will be referred to a mutually agreed accounting firm (the Accountant “Accountants”) for final determination within 45 forty-five (45) days after such referral. Any other disputes with respect to the Earnout Statement may be submitted for confidential binding arbitration to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) for resolution in a confidential private arbitration in accordance with the streamlined rules and procedures of JAMS. Any such arbitration proceeding shall take place in the State of Delaware before a single arbitrator (rather than a panel of arbitrators) with substantial experience in contract law and shall remain confidential. The award rendered by arbitration shall be final and binding upon the parties. The determination by the Accountant Accountants of the amounts in dispute shall be based solely on presentations by Buyer Subversive and Seller, and shall not involve the Accountant’s independent reviewShareholders’ Representative. Any determination by the Accountant Accountants shall not be outside the range defined by the respective amounts in such the Earnout Statement proposed by Buyer Subversive and Sellerthe Shareholders’ Representative’s proposed adjustments thereto set forth in the Earnout Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealable by the Partiesnon- appealable. Each of Buyer and Seller shall execute and deliver a customary engagement letter as may be requested by the Accountant, and each of BuyerSubversive, on the one hand, and Seller, ▇▇▇▇▇▇ Shareholders (jointly and severally) on the other hand, shall bear that percentage of the fees and expenses of the Accountant Accountants equal to the proportion (expressed as a percentage and determined by the AccountantAccountants) of the dollar value of the disputed amounts determined in favor of the other party by the AccountantAccountants. Notwithstanding the forgoing, any amount of fees and expenses determined to be owed by the ▇▇▇▇▇▇ Shareholders shall be paid out of the Expense Fund.