Determination of Earn-Out Payments. (a) In respect of the Earn-Out Milestones set out in Sections 1, 2 and 3 of Schedule 2.8.1(A), the Purchaser shall advise the Vendors’ Delegate in writing of the satisfaction of each such Earn-Out Milestone within [**] of each such Earn-Out Milestone being satisfied. If the Purchaser or the Vendors’ Delegate dispute whether either such Earn-Out Milestone has been satisfied, such dispute shall be resolved in accordance with the dispute resolution process set out in Section 7.11.3 of this Agreement.
Determination of Earn-Out Payments. To the extent that Buyer determines that the full amount of the Earn-Out Payments are not achieved, within sixty (60) days after the end of Fiscal 2019, Buyer shall prepare and deliver to the Representative a report (the “Earn-Out Report”) setting forth (a) Buyer’s calculation of the Earn-Out Payments and (b) all records and work papers reasonably necessary to compute and verify the information set forth in the Earn-Out Report. If the Representative has any objections to the calculation of the Earn-Out Payments prepared by Buyer, then the Representative will deliver a reasonably detailed written statement (the “Earn-Out Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earn-Out Report. If the Representative fails to deliver an Earn-Out Objections Statement within such thirty (30) day period, then the calculation of the Earn-Out Payments set forth in the Earn-Out Report shall become final and binding on all Parties. If the Representative delivers an Earn-Out Objections Statement within such thirty (30) day period, then the Representative and Buyer will negotiate in good faith to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Representative has submitted the Earn-Out Objections Statement, any remaining matters which are in dispute will be resolved by the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Earn-Out Report or any more favorable to the Representative than is proposed in the Earn-Out Objections Statement. The costs, expenses and fees of the Accountants shall be borne by either the Equityholders, if the Representative’s calculation of the Earn-Out Payments has the greatest difference from the final Earn-Out Payments as determined by the Accountants under this Section 1.13 on the one hand, or Buyer, if Buyer’s calculation of the Earn-Out Payments has the greatest difference from the final Earn-Out Payments as determined by the Accountants under this Section 1.11; otherwise, such costs, fees and expenses of the Accountants shal...
Determination of Earn-Out Payments. (a) Seller shall be entitled to receive an Earn-Out Payment (as defined below) to be determined and paid in accordance with this Section 2.8. With respect to the period beginning on the day following the Closing Date and ending on the date that is the twelve (12) month anniversary of the Closing Date (the “Earn-Out Measurement Period”), Seller shall be entitled to receive a payment (the “Earn-Out Payment”) calculated as follows:
Determination of Earn-Out Payments. In connection with determining the amount of Earn-Out Payments, the following terms shall have the following meanings:
Determination of Earn-Out Payments. Parent shall also pay an earn out (the “Earn Out Payments”) (to be paid by Parent to the Amorcyte Representative in trust for the benefit of the Amorcyte Securityholders in accordance with the Consideration Allocation and Percentage Certification and consistent with Exhibit E), equal to 10% of the Net Sales of AMR-001, which payment obligation shall begin following the date of first commercial sale of AMR-001 and continue until the latest date that a valid patent claim exists on a country by country basis covering AMR-001, provided that if Parent licenses or otherwise grants an unaffiliated third party the right to commercialize or otherwise exploit AMR-001 or any portion of AMR-001 (an “Out-License Transaction”) (including, without limitation, an Out-License Transaction for all or part of any territory for AMR-001) then the applicable Earn Out Payment shall be equal to 30% of any sublicensing fees, royalties and milestone fees or profit sharing payments (but not payments for development costs) actually received by NeoStem. NeoStem shall be entitled to recover (i) direct out-of-pocket clinical development costs not previously paid or reimbursed and (ii) any costs, expenses, damages, liabilities, settlement amounts (including any royalties paid to third parties) arising out of or related to claims with respect to patent infringement or otherwise challenging Amorcyte’s ownership of, or right to use, the Intellectual Property (the “Infringement Damage Claims”) by reducing any Earn Out Payments due to the Amorcyte Securityholders pursuant to this Section 3.7(a) by 50% until such costs have been recouped in full; provided that there shall be no double counting of Infringement Damage Claims and provided further that in the event Parent or Amorcyte receives any Infringement Damage Claim, it shall notify the Amorcyte Representative of such claim and shall consult with the Amorcyte Representative with reasonable frequency with respect to the defense of, and negotiation of any settlement with respect to, any such Infringement Damage Claim. All of the payments due hereunder shall be paid to the Amorcyte Representative within ninety (90) days following the end of each calendar quarter.
Determination of Earn-Out Payments. As promptly as practicable after the end of an Earn-out Period but in no event later than thirty (30) days after the end of the Earn-out Period, the Parent shall determine the earn-out payment, if any, in respect of such Earn-out Period and shall deliver to each Vested Company Member a notice (the “Earn-out Notice”), setting forth in reasonable detail the calculation of such earn-out payment. The Earn-out Notice shall include a certification from the Chief Financial Officer of the Parent setting forth the calculation of the earn-out payment (including all components thereof) for the Earn-out Period determined in accordance with this Agreement, certifying as to the accuracy thereof. Parent and Xxxxxxxxx Xxxxxxxx or her designee (the “Representative”), on behalf of the Vested Company Members, shall from time to time, upon reasonable request of the Representative, meet and discuss any and all financial and business matters relating to the calculation of the earn-out payment for the applicable Earn-out Period.
Determination of Earn-Out Payments. (a) If Earn-Out EBITDA exceeds Thirteen Million Five Hundred Thousand USD ($13,500,000.00) (“Earn-Out EBITDA Threshold”), the Holders shall be entitled to receive an Earn-Out Payment to be determined and paid in accordance with this Section 1.12. Subject to the definition and assumptions for calculating Earn-Out EBITDA set forth on Exhibit F, Earn-Out EBITDA for the period beginning on January 1, 2018 and ending on December 31, 2018 (the “Earn-Out Measurement Period”) shall be calculated and determined in accordance with GAAP as in effect on the date the Preliminary Earn-Out Report is delivered to the Holders Representative and in a manner consistent with the principles and policies set forth on Exhibit F (the “Agreed Earn-Out Principles”), except where there is an inconsistency between GAAP and this Agreement, in which case this Agreement shall be controlling; provided, however, that the Parties hereby agree that “Earn-Out EBITDA” for Q1 2018 is $3,420,000, for Q2 2018 is $3,741,991 and for Q3 is $5,247,206.26. If the Earn-Out EBITDA Threshold is exceeded, the payment (the “Earn-Out Payment”) shall be equal to (i) (x) Earn-Out EBITDA minus (y) Thirteen Million Five Hundred Thousand USD ($13,500,000.00) multiplied by (ii) five (5).
Determination of Earn-Out Payments. (a) Sellers shall deliver to Purchaser within ninety (90) days of August 31, 1997 (i) the Company's audited financial statements for the twelve-month period ended August 31, 1997 and (ii) a statement setting forth the computation and amount of Adjusted Pre-Tax Income for the first Earn-Out Period as reviewed and concurred to by the Company's independent public accountants (the "First Earn-Out Statement"). Purchaser shall pay the Earn-Out Payment, if any, to Sellers within five (5) days of the delivery of the First Earn-Out Statement unless disputed by Purchaser. Purchaser must notify Sellers of any dispute with the computation of Adjusted Pre-Tax Income set forth on the First Earn-Out Statement, and any such dispute shall be resolved, in the same manner as set forth in Section 1.4(c) below.
Determination of Earn-Out Payments. The metrics used to calculate the earn-out payments referenced in Section 2.13(a) herein shall be based on the books and records maintained by Parent.
Determination of Earn-Out Payments. (a) If the EBITDA of the Business during the First Performance Period is equal to or greater than the EBITDA Target during the First Performance Period, Sellers shall be entitled to receive either (i) Seven Hundred Fifty Thousand Dollars ($750,000); or, upon the delivery of written notice by Sellers’ Representative to Buyer no less than fifteen (15) days from the date of delivery of any Earn-Out Report (as defined in Section 2.9.3), (ii) an issuance of 15,368.86 shares of the capital stock of Ultimate Parent to each Interest Seller.
