Contingent Consideration Sample Clauses
A Contingent Consideration clause defines terms under which additional payments may be made after the initial transaction, depending on the occurrence of specified future events or performance targets. For example, in a business acquisition, the seller might receive extra compensation if the acquired company meets certain revenue milestones within a set period. This clause allows parties to bridge valuation gaps and allocate risk by tying part of the purchase price to future outcomes, ensuring both sides are protected if expectations about future performance differ.
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Contingent Consideration. (a) The Vendors shall be entitled to be paid by the Purchaser the earn-out payments (the “Earn-Out Payments”), as additional consideration for the sale and transfer of the Purchased Shares, based on the achievement of the Earn-Out Milestones in accordance with the terms set out in Schedule 2.8.1(A). The Parties acknowledge that the Earn-Out Payments are intended to be adjustments to the Purchase Price of the Purchased Shares to reflect the underlying goodwill of the Business, the value of which cannot be accurately determined by the Parties on or before Closing Date.
(b) In addition, the Vendors shall be entitled to be paid by the Purchaser royalties and sharing payments (the “Royalties”), as additional consideration for the sale and transfer of the Purchased Shares, in accordance with the terms set out in Schedule 2.8.1(B), and as further delineated therein.
(c) The determination of whether any Earn-Out Payments or Royalties are payable shall be based on the terms of this Section 2.8, the applicable Schedule (2.8.1(a) or 2.8.1(b)) and the applicable terms of this Agreement.
(d) All Earn-Out Payments and Royalties due and owing to the Vendors shall only be payable in cash, such payment to be in US dollars.
(e) Any agreed Contingent Consideration shall be payable to the Paying Agent, by wire transfer of immediately available funds to the account specified by the Paying Agent, to the Purchaser, for distribution by the Paying Agent amongst the Vendors in accordance with their respective Designated Percentages.
(f) The Vendors’ Delegate shall invoice the Purchaser for any Earn-Out Payments and Royalties payable once the amount of any such Earn-Out Payments and/or Royalties have been finally determined in accordance with the terms of this Section 2.8. If any portion of any Earn-Out Payments and/or Royalties remains to be determined by the Parties or is subject to dispute in accordance with the terms of this Section 2.8, the Parties acknowledge that the Vendors’ Delegate shall be entitled to issue an invoice for any portion of such Earn-Out Payments and/or Royalties that do not remain to be so determined. For the avoidance of doubt, the Vendors’ Delegate shall only invoice the Purchaser for the portion of any Earn-Out Payments or Royalties in dispute after such dispute is settled and the applicable portion of such Earn-Out Payment or Royalty is finally determined and failure to issue the invoice due to any dispute shall not prejudice the Vendors or the Vendors’ ...
Contingent Consideration. (a) Promptly (and in any event within two (2) Business Days) following a Final Earn-Out Payment Statement being deemed final and binding pursuant to Section 1.3(e) of this Annex A, Buyer shall pay to Seller (by wire transfer of immediately available funds to an account designated in writing by Seller) an amount (not to exceed $130 million) in cash equal to one-half (1/2) of the product of (i) Excess EBITDA, multiplied by (ii) the Earn-Out Multiple (such amount, the “Earn-Out Payment”). For illustration purposes only, (A) if Actual EBITDA was $100 million, then the Earn-Out Payment would be $92.5 million (representing one-half of the product of (i) $25 million, multiplied by (ii) 7.40), and (B) if Actual EBITDA was $200 million, then the Earn-Out Payment would be $130 million because the Earn-Out Payment is capped at $130 million.
(b) Notwithstanding the foregoing, and so long as shares of Buyer Class A Stock are listed on a national securities exchange, Buyer may, as determined by Buyer in its sole discretion, pay to Seller the Earn-Out Payment as follows, and such payment, if elected, shall be made promptly (and in any event within two (2) Business Days) following the Final Earn-Out Payment Statement referred to in Section 1.2(a) of this Annex A being deemed final and binding:
(i) an amount in cash (by wire transfer of immediately available funds to an account designated in writing by Seller) equal to one-half (1/2) of the Earn-Out Payment; and
(ii) in satisfaction of the other one-half (1/2) of the Earn-Out Payment, the issuance by Buyer to Seller of such number of validly issued, fully paid and non-assessable shares of the Buyer Class A Stock determined by dividing (x) fifty percent (50%) of the Earn-Out Payment by (y) the intraday volume weighted average price of one share of Buyer Class A Stock, as reported by Bloomberg, LP, over the ten (10) trading days ending on the trading day immediately preceding the date on which the Final Earn-Out Payment Statement is deemed final (the “Earn-Out Buyer VWAP”); provided, however, if the foregoing number of shares, together with the Buyer Shares, is greater than a number representing nineteen and nine tenths percent (19.9%) of the shares of Buyer Class A Stock outstanding as of such date (such number, the “Earn-Out Stock Threshold”), then the number of shares of Buyer Class A Stock to be delivered pursuant to this Section 1.2(b)(ii) of this Annex A shall be reduced to the Earn-Out Stock Threshold and, in such eve...
Contingent Consideration. (a) Following the Closing, and as additional consideration for the Merger and the other transactions contemplated by this Agreement, within ten (10) Business Days after the occurrence of a Triggering Event that occurs before the fifth year anniversary of the Closing Date with respect to Section 3.03(a)(i), before the seventh year anniversary of the Closing Date with respect to Section 3.03(a)(ii), and before the tenth year anniversary of the Closing Date with respect to Section 3.03(a)(iii), (in each case, as applicable to such clause, the “Contingent Consideration Period”), each Contingent Consideration Eligible Company Equityholder (in accordance with its respective Contingent Consideration Pro Rata Share) is eligible to receive the following shares of Adara Class E Common Stock, as applicable (which shall be equitably adjusted to reflect stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to the Adara Class E Common Stock occurring on or after the Closing and prior to the date of such issuance, the “Contingent Consideration Shares”):
(i) Upon the occurrence of Triggering Event I prior to the fifth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares;
(ii) Upon the occurrence of Triggering Event II prior to the seventh year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; and
(iii) Upon the occurrence of Triggering Event III prior to the tenth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares. For the avoidance of doubt, the Contingent Consideration Eligible Company Equityholders shall be entitled to receive Contingent Consideration Shares upon the occurrence of each Triggering Event during the applicable Contingent Consideration Period; provided, however, that in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive Contingent Consideration Share after the tenth year anniversary of the Closing; provided, further, that each Triggering Event shall only occur once, if at all, and in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive an aggregate of more than 60,000,000 Contingent Consideration Shares; provided, further, that Triggering Event I, Tr...
Contingent Consideration. Additional consideration of up to a maximum of $5,000,000 (the "Maximum Contingent Consideration") may be paid by the Purchaser based on a combination of 2005 and 2006 EBITDA (and, to the extent applicable, 2007 EBITDA), as follows:
(a) $1,500,000 in Contingent Consideration shall be payable if the Target Companies achieve at least $5,000,000 in EBITDA in 2005; in the event that the Target Companies achieve EBITDA of less than $5,000,000, no Contingent Consideration shall be payable pursuant to this Section 1.7(a). Any Contingent Consideration payable pursuant to this Section 1.7(a) (the "2005 Contingent Consideration") will be payable on or before February 15, 2006.
(b) So long as the Target Companies achieve EBITDA in 2005 of at least $4,000,000, additional Contingent Consideration shall be payable only if the Target Companies achieve EBITDA in 2006 (and, if applicable, 2007), as follows:
(i) The amount of the Contingent Consideration shall be $0 in the event that the Target Companies achieve EBITDA in 2006 of $6,000,000, and $3,500,000 if the Companies achieve EBITDA in 2006 of at least $8,000,000, and the Contingent Consideration of up to $3,500,000 shall be prorated for any EBITDA in 2006 between $6,000,000 and $8,000,000. Any Contingent Consideration payable pursuant to this Section 1.7(b)(i) (the "2006 Contingent Consideration") will be payable on or before February 15, 2007.
(ii) In the event that the 2006 Contingent Consideration, if any, equals less than $3,500,000, the difference between $3,500,000 and the 2006 Contingent Consideration (the "Balance") may be earned as follows: the amount of Contingent Consideration shall be $0 in the event that the Target Companies achieve EBITDA in 2007 of $7,500,000 or less, the full amount of the Balance if the Target Companies achieve EBITDA in 2007 of at least $10,000,000, the Contingent Consideration, up to the full amount of the Balance, shall be prorated for any EBITDA in 2007 between $7,500,000 and $10,000,000. Any Contingent Consideration payable pursuant to this Section 1.7(b)(ii) (the "2007 Contingent Consideration") will be payable on or before February 15, 2008. For purposes of clarity, if the Target Companies fail to achieve at least $4,000,000 in EBITDA in 2005, no Contingent Consideration shall be payable whatsoever.
(c) The Contingent Consideration shall be allocated among the MAG Holders in accordance with the MAG Allocation. The Contingent Consideration shall be payable, at the election of th...
Contingent Consideration. 2.4.2.1. In addition to the issuance of the Milestone Consideration Shares (to the extent applicable), subject to and upon meeting of any Milestone during the period listed therein, the Purchaser shall make the applicable and additional payment as listed in the Milestone Schedule in shares and/or in cash (as set forth below) to the Consideration Recipients per the allocation set forth in the Waterfall (the “Contingent Consideration”).
2.4.2.2. Any payment of the Contingent Consideration, calculated as set forth in the Milestone Schedule, may be paid at the discretion of the Purchaser in one of the following methods (i) all cash, (ii) a combination of cash and remaining consideration payable in the then most senior class of shares of the Purchaser (the allocation to be determined by Purchaser in its sole discretion) or (iii) all consideration payable in the most senior class of shares of the Purchaser authorized or outstanding as of the time that payment is due. In the case of (ii) and (iii), consideration in shares will be based on the lowest price per share paid by any holder of Purchaser’s most senior class of shares in consideration for the issuance thereof (such shares “Equity Contingent Consideration” and such price, the “Equity Contingent Consideration Price”), provided that, to the extent that the Tax Ruling has not yet obtained by that time or a Trigger Event has occurred prior to such date, at least [***] of the applicable Contingent Consideration shall be made in cash (the “Minimum Cash Contingent Consideration”). In case that the Application was rejected, the issuance of the Equity Contingent Consideration and the Cash Contingent Consideration shall be subject to withholding Taxes in accordance with Section 2.10 hereto. In case that the Purchaser’s shares (or any shares received by the Company’s shareholders as part of a merger with a public company) are traded on a public market, then the price per share calculated as part of the payment under the Milestone Schedule, shall be calculated as set forth in Article 13.2 to the Amended Articles, provided that the distribution thereunder shall be deemed as the date of the notice of completion of the applicable Milestone.
2.4.2.3. The Purchaser will notify the Shareholders’ Representative, in writing, of its decision of how such Contingent Consideration is to be paid in cash (the “Cash Contingent Consideration”) or Equity Contingent Consideration within fourteen (14) Business Days from the date that th...
Contingent Consideration. If any of the Milestone Events set forth in Schedule 5 (Contingent Consideration) are achieved, the Buyer will make the corresponding Milestone Payment to the Payments Administrator for further distribution to the Sellers on or prior to the Payment Date. Any Contingent Consideration payable to the Sellers shall be allocated between the Sellers with regard to their respective Proportion of Initial Consideration or as otherwise notified to the Buyer in writing by the Sellers’ Representative at least five (5) Business Days prior to a Payment Date and shall be satisfied:
Contingent Consideration. Notwithstanding any other provisions hereof, the transactions set forth in the “Contingent Consideration Term Sheet” (as defined in the Bankruptcy Plan) and contemplated in the Bankruptcy Plan or “Definitive Documents” (as defined in the Bankruptcy Plan) shall be expressly permitted under this Indenture, and no Default or Event of Default shall occur in connection with the implementation of such transactions.
Contingent Consideration. (i) The Contingent Consideration shall be calculated in accordance with SCHEDULE 1.6(F).
(ii) The right to receive the Contingent Consideration, if any, payable pursuant to this Agreement is a contract right only and no certificate evidencing such right shall be issued. The right to receive the Contingent Consideration pursuant to the Merger shall not be transferred or assigned, other than to Affiliates.
(iii) If at the end of any fiscal quarter during 2004, Surviving Business Revenue for such fiscal quarter (A) is not less than eighty percent (80%) of the forecast for that fiscal quarter as detailed in the Company's Business Plan provided to Parent prior to the date of this Agreement (the "BUSINESS Plan") and Surviving Business Gross Margin for such fiscal quarter is not less than eighty-five percent (85%), then during 2004 Parent shall not cause fundamental business changes materially adversely affecting the Surviving Business' ability to meet the Business Plan without the express consent of the Contingent Consideration Representative (as defined below); and (B) is less than the forecast for that fiscal quarter as detailed in the Business Plan, then Parent and the Contingent Consideration Representative shall discuss in good faith possible changes to the Business Plan.
(iv) The Contingent Consideration, if any, shall be payable as follows:
(A) Parent shall pay the Contingent Consideration, if any, on a date that shall be no later than the sixtieth (60th) day after the final financial statements of the Surviving Business for the calendar year ending December 31, 2004 are released by the Surviving Business Auditors, and further provided that such date may be extended pursuant to Section 1.6(f)(v)(B) (the "CONTINGENT CLOSING DATE"). Promptly after the Contingent Closing Date, Parent shall deposit with the Exchange Agent the shares of Parent Common Stock, if any, issuable as Contingent Consideration pursuant to this Section 1.6 for payment to the Stockholders in accordance with this Section 1.6. Such number of shares of Parent Common Stock shall be determined by dividing the Contingent Consideration determined pursuant to SCHEDULE 1.6(F) by the Parent Average Closing Price.
(B) Only those Stockholders who have properly transmitted their Certificate(s) to the Exchange Agent along with a duly completed and validly executed Letter of Transmittal as set forth in Section 1.8 shall be entitled to receive the Contingent Consideration, if any, payable pursuant to th...
Contingent Consideration. As additional consideration for the Shares, Purchaser shall pay to Seller an amount equal to 50 percent of Seller's earnings before income taxes, interest, depreciation and amortization ("EBITDA") for the 12-month period ending April 30, 2003 (the "Contingent Purchase Price") determined in conformity with GAAP. Purchaser shall provide Seller with written notice (the "EBITDA Notice") of Purchaser's determination of EBITDA in reasonable detail on or before June 30, 2003, together with copies of a similar computation with respect to Purchaser's EBITDA for the 12-month period ending April 30, 2002. Following Purchaser's delivery to Seller of the EBITDA Notice, Purchaser shall provide Seller's independent accountants and/or Seller's other agents and representatives with reasonable access to Purchaser's books, records and employees for the purpose of substantiating Purchaser's determination of EBITDA for the 12-month period ending April 30, 2003. Seller shall deliver to Purchaser, within 60 days following Seller's receipt of the EBITDA Notice, written notice of (i) Seller's concurrence with Purchaser's determination of EBITDA for the 12-month period ending April 30, 2003 ("Notice of Concurrence") or (ii) Seller's disagreement with such determination, accompanied by a detailed explanation of such disagreement. In the event of a disagreement, the parties shall endeavor for a period of at least 30 days to negotiate a settlement of their differences. If the parties are unable to reach agreement during such period, the parties shall engage Ernst & Young LLP (the "Independent Firm") to perform a determination of Purchaser's EBITDA for the 12-month period ending April 30, 2003 (the "Final Determination"), which determination shall be final and binding on each of the parties. The Independent Firm shall make its determination based solely on presentations by Purchaser and Seller, and not by independent review. In resolving any disputed item the Independent Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. Any fees and expenses of the Independent Firm shall be borne by: (i) Seller in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by Seller bears to the aggregate dollar amount of all disputed items and (ii) Purchaser in the proportion that the aggregate dollar amount of such ...
Contingent Consideration. For a period of five (5) years following the Option Exercise Closing Date (“Contingent Payment Period”), should the daily price of gold (as determined by the London PM Fix) average ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (U.S.$1,600) per ounce or greater for a period of ninety (90) consecutive Trading Days (the “Trigger Event”), Buyer shall be required to pay or cause to be paid to Gunpoint Parent (or as Gunpoint Parent may direct) an additional payment of Ten Million United States Dollars (U.S.$10,000,000) (the “Contingent Payment”). Five Million United States Dollars (U.S.$5,000,000) of the Contingent Payment shall be due and payable to Gunpoint Parent (or as Gunpoint Parent may direct) no later than six months following the Trigger Event, payable in cash or, at Timberline’s discretion, up to one-half (Two Million Five Hundred Thousand United States Dollars (U.S.$2,500,000)) in shares of common stock of Timberline Parent. The remaining Five Million United States Dollars (U.S.$5,000,000) of the Contingent Payment shall be due and payable to Gunpoint Parent (or as Gunpoint Parent may direct) no later than twelve months following the Trigger Event, payable in cash or, at Timberline’s discretion, up to one-half (Two Million Five Hundred Thousand United States Dollars (U.S.$2,500,000)) in shares of common stock of Timberline Parent. The issuance of shares of common stock of Timberline Parent will be subject to any applicable requirements of the TSX Venture Exchange. As used herein, “Trading Day” shall include any day during which the London Bullion Market Association is open for business and provides a London PM Fix for gold. In relation to any issuance of shares of common stock of Timberline Parent pursuant to any Contingent Payment, Gunpoint Parent and/or the entity to which such shares of common stock are being issued will deliver prior to the issuance of such shares of common stock a certificate regarding certain representations, warranties and covenants for purposes of issuing such shares of common stock pursuant to applicable securities laws at the time of such issuance. For any shares of common stock of Timberline Parent issued as part of the Contingent Payment, the deemed value of such shares shall be greater of (a) the Closing Price for such shares of common stock on the Option Exercise Closing and (b) the “Discounted Market Price” (as defined by the TSX Venture Exchange) per such share of common stock on the date prior to the dissemination of...