Earn-Out Clause Samples
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Earn-Out. (a) Subject to the terms and conditions of this Section 1.5, Purchaser will pay to the Individuals, as additional Purchase Price for the Acquired Shares, an amount equal to three times the amount, if any, by which the total EBITDA for the 2016 fiscal year for the Companies (the “2016 EBITDA”) exceeds $15,655,477 (the “Earn Out Amount”).
(b) To determine the 2016 EBITDA amount, Purchaser’s independent public accountants will calculate, in accordance with GAAP and consistent with the same manner in which the Companies’ 2015 Audited Financial Statements were prepared, the EBITDA of each of the Companies for its 2016 fiscal year and the sum of the total EBITDA of the Companies for their 2016 fiscal year. Such calculations will be undertaken promptly after the Closing, and a copy of such final calculations will be provided to Purchaser and Equityholders’ Representative by such accountants (such final calculations being referred to as, the “Auditor’s Report”). The parties agree that the costs incurred by the Companies in 2016 that are solely related to: (i) the Companies’ responses to the due diligence requests of Purchaser; (ii) the restatement of the Companies’ financials at Purchaser’s request; and (iii) preparing to consummate the transactions contemplated by this Agreement, including the Pre-Closing Reorganization, which costs will be set forth on Schedule 1.5 and attached hereto at the Closing, shall not be deducted from the Companies’ earnings for purposes of calculating the 2016 EBITDA.
(c) Following the receipt by Equityholders’ Representative of the Auditor’s Report, Purchaser shall permit Equityholders’ Representative reasonable access during normal business hours to the books and records pertaining to the preparation of the Auditor’s Report and provide Equityholders’ Representative with copies thereof (as reasonably requested by Equityholders’ Representative) and such additional information as Equityholders’ Representative may reasonably request to confirm the Earn Out Amount. The Equityholders agree that the scope of such audit shall be reasonable and as is customary in transactions of this kind. All costs and fees incurred by the parties related to the exercise of the audit right shall be borne by each of the respective parties. If the parties fail to mutually agree on the Earn Out Amount after 30 days following the receipt of the Auditor’s Report by Equityholders’ Representative, then the parties shall submit the issues then-remaining in dispute t...
Earn-Out. In addition to the Cash Portion of the Purchase Price and the Closing Shares payable and issuable at the Closing pursuant to this Section 2.1, the Shareholder shall be entitled to receive the Earn-Out Amount determined and payable as provided in this Section 2.1(n).
(i) PentaStar agrees that, during the Earn-Out Period, the Surviving Corporation shall conduct the operations previously conducted by the Company in the Montclair Region as a separate subsidiary or division of PentaStar with no other operations. The Surviving Corporation shall account for its operations in the Montclair Region in accordance with the accounting practices of PentaStar.
(ii) As soon as reasonably practicable after June 30, 2001 and in any event by August 31, 2001, PentaStar shall cause Arth▇▇ ▇▇▇e▇▇▇▇ L.L.P. ("Arth▇▇ ▇▇▇e▇▇▇▇") ▇o determine (A) the Earn-Out EBITA and (B) prepare a written calculation of the Earn-Out Amount (collectively, the "Earn-Out Financial Statements"). Arth▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇ermination under this Section 2.1(n)(ii) shall be made in accordance with GAAP, on a basis consistent with the accounting practices of PentaStar. PentaStar shall promptly provide a copy of the Earn-Out Financial Statements to the Shareholder. Within 30 days after receipt of the Earn-Out Financial Statements, each of PentaStar and the Shareholder shall, in a written notice to the other, either accept the Earn-Out Financial Statements or object to them by describing in reasonably specific detail any proposed adjustments to the Earn-Out Financial Statements and the estimated amounts of and reasons under PentaStar's application of GAAP for such proposed adjustments. The failure by PentaStar or the Shareholder to object to the Earn-Out Financial Statements within such 30-day period shall be deemed to be an acceptance by the Shareholder or PentaStar, as the case may be, of the Earn-Out Financial Statements. If any adjustments to the Earn-Out Financial Statements are proposed by PentaStar or the Shareholder within such 30-day period, the dispute shall be resolved as provided in Section 2.1(o). The fees and expenses of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ the preparation of the Earn-Out Financial Statements shall be paid by PentaStar.
Earn-Out. (a) Seller shall be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets:
(i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater;
(ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and
(iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater.
(b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to ...
Earn-Out. (a) At the Closing, in addition to the consideration to be received pursuant to Section 3.02 and as part of the overall consideration payable to the holders of Company Common Stock and holders of Company Vested In-the-Money Options pursuant to this Agreement, Holdco shall place the Earn-Out Shares into escrow with the Escrow Agent pursuant to the Escrow Agreement. If, at any time during the period beginning on the Closing Date and expiring at the close of business on the second anniversary of the Closing Date (the “Earn-Out Period”), the VWAP of Holdco Common Stock shall be equal to or greater than $12.50 for any twenty (20) Trading Days within a period of thirty (30) consecutive Trading Days (the “Earn-Out Trigger”), then within ten (10) Business Days following the achievement of the Earn-Out Trigger, Holdco shall instruct the Escrow Agent to deliver the Earn-Out Shares to the holders of Company Common Stock and holders of Company Vested In-the-Money Options, in each case in accordance with the Payment Spreadsheet.
(b) If a Change of Control occurs during the Earn-Out Period that results in the holders of shares of Holdco Common Stock receiving consideration equal to or in excess of $12.50 per share, then, immediately prior to the consummation of such Change of Control, (i) the Earn-Out Trigger, to the extent that it has not been previously satisfied, shall be deemed to be satisfied, and (ii) Holdco shall promptly instruct the Escrow Agent to deliver the Earn-Out Shares to the holders of Company Common Stock and holders of Company Vested In-the-Money Options, in each case in accordance with the Payment Spreadsheet.
(c) If the Earn-Out Trigger shall not be achieved during the Earn-Out Period, then, upon expiration of the Earn-Out Period, the obligations in this Section 3.04 shall terminate and no longer apply and Holdco shall instruct the Escrow Agent to deliver the Earn-Out Shares to Holdco for cancellation.
(d) The Earn-Out Shares and the Earn-Out Trigger shall be adjusted, and additional shares of Holdco Common Stock shall be delivered to the Escrow Agent as necessary, to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Holdco Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Holdco Common Stock, occurring on or after the date hereof and prior to the time any ...
Earn-Out. (a) Subject to the terms and conditions of this Section 2.6, the Earn Out Units shall be issuable to the Company Equity Holders in accordance with the terms of Section 2.2 as follows (any such issuable Earn Out Units, “Earned Earn Out Units”):
(i) if at any time during the twelve (12) months following the Closing the VWAP of the Surviving Pubco Class A Shares is greater than or equal to $12.50 over any twenty (20) Trading Days within any thirty- (30-) Trading Day period, 50% of the Earn Out Units; and
(ii) if at any time during the twenty-four (24) months following the Closing the VWAP of the Surviving Pubco Class A Shares is greater than or equal to $14.00 over any 20 Trading Days within any 30-Trading Day period, 100% of the Earn Out Units. Notwithstanding anything to the contrary set forth in this Agreement, the number of Earn Out Units to be issued pursuant to this Section 2.6 shall be limited such that in no event shall the Company Equity Holders receive more than 100% of the Earn Out Units. The Surviving Pubco Class A Share price targets in clauses (i) and (ii) shall be equitably adjusted for stock splits, stock dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the Surviving Pubco Class A Shares after the date of this Agreement (other than in respect of issuances of Surviving Pubco Class A Shares in connection with (i) any Additional Equity Financing or (ii) the issuance of the Equity Consideration (including the Estimated Equity Consideration)).
(b) In the event of the satisfaction of the threshold set forth in Section 2.6(a)(i) or the threshold set forth in Section 2.6(a)(ii), as soon as practicable (but in any event within five (5) Business Days) after such satisfaction, the Surviving Pubco will deliver to the Company Securityholder Representative a written statement (each, a “Stock Price Earn-Out Statement”) that sets forth (i) the VWAP over the applicable 20-Trading Day period and (ii) the calculation of the amount of Earned Earn Out Units in connection therewith. Any Earned Earn Out Units issuable as a result of the satisfaction of the threshold set forth in Section 2.6(a)(i) or the threshold set forth in Section 2.6(a)(ii) shall be issued to the Company Equity Holders in accordance with Section 2.2 and the Earn Out Payout Schedule within five (5) Business Days after such satisfaction.
(c) Following the Closing, including during the twenty-four (24) months following the Closing, the Surviving Pubco a...
Earn-Out. (a) Solely on the terms and subject to the conditions in this section and the other provisions of this Agreement, the Shareholders shall be eligible to receive additional contingent consideration from NMI, in the form of an aggregate of 65,920 NMI Shares (the “Earn-Out”) after December 31, 2006. The Earn-Out shall be issued to the Shareholders if, and only if, the Earn-Out Revenue during the Revenue Measurement Period equals or exceeds $25,951,000 (the “Revenue Target”). To the extent that during the Revenue Measurement Period, current employees of the Company, from time to time, divert their attention and time away from the Business to assist the employees of NMI in the conduct and operation of NMI’s businesses (excluding the conduct and operation of the Business), then the amount equal to the following shall be known as the “Earn-Out Credit”: that amount derived from multiplying (i) the number of hours spent by all such Company employees involved in such assistance at any given time during the Revenue Measurement Period, by (ii) $1000 and then dividing the resulting product by (iii) the Person Day. In the event that the Earn-Out Revenue does not equal or exceed the Revenue Target during the Revenue Measurement Period, NMI shall have no obligation to make any payment to the Shareholders and no obligation to issue any of the NMI Shares comprising the Earn-Out to the Shareholders.
(b) In the event NMI is obligated to deliver the Earn-Out pursuant to Section 2.4(a), within fifteen (15) business days after the final determination of the Earn-Out Revenue pursuant to Section 2.4(d) below, NMI shall deliver the NMI Shares comprising each Shareholder’s portion of the Earn-Out (as determined pursuant to Section 2.3(a)) to such Shareholder; provided, however, that in the event that such Shareholder is eligible to receive a fractional amount of NMI Shares as determined herein, then such fractional amount shall be rounded up to the nearest whole integer amount.
(c) NMI shall calculate the Earn-Out Revenue within forty-five (45) days after the end of the Revenue Measurement Period, and shall notify the Shareholders Representative of the results of such calculation no later than fifteen (15) days after the date such calculation has been made and such notice shall include the computation used to determine the Earn-Out Revenue and a copy of all financial information used to make such computation.
(d) Unless the Shareholders Representative notifies NMI in writing within t...
Earn-Out. Buyer shall issue the Additional Investment Shares to the Investors as follows:
(i) With respect to the period commencing October 1, 2008 and ending September 30, 2009, in the event that Buyer or its applicable Vessel-owning subsidiary nominees achieves EBITDA for such period equal to or in excess of $72 million derived from the Vessels owned by Buyer or its applicable Vessel-owning subsidiary nominees, assuming all of the Vessels are delivered to Buyer or its applicable Vessel-owning subsidiary nominees on or before October 1, 2008 and all such Vessels are included in such revenues for the entire one-year period, then on November 16, 2009, the Investors shall be entitled to receive the Additional Investment Shares.
(ii) For the purpose of calculating EBITDA in this Section, if any Vessel is delivered to Buyer or its applicable Vessel-owning subsidiary nominees after October 1, 2008, or any such Vessel is sold, or becomes an actual, constructive or compromised total loss or is compulsorily requisitioned prior to September 30, 2009, or any Vessel is off-hire for any reason other than failure of EST to comply with its obligations under the Management Agreement in good faith, then the EBITDA target for the fiscal year ending September 30, 2009, shall be reduced pro rata on a per diem basis in accordance with such Vessel’s or Vessels’ contribution to EBITDA for the portion of the period referred to in sub-paragraph (i) above during which such Vessel was off-hire for reason other than the failure of EST to comply with its obligations in good faith under the Management Agreement, in accordance with Schedule 3.2(f).
(iii) No later than November 16, 2009 (the “Determination Date”), Buyer shall deliver to Sellers a detailed notice setting forth Buyer’s calculation of EBITDA for purposes of determining whether the Additional Investment Shares have been earned in accordance with the terms of this Section. Seller shall have a period of 15 days after delivery of such written notice to review such calculations and provide Buyer with written notice of any objection thereto, which objections shall be in reasonable detail (the “Objection Notice”). In the event that Buyer does not receive the Objection Notice within such 15-day period that objects to the calculation of the Additional Investment Shares to be issued, the Sellers shall be deemed to have irrevocably accepted such calculations and determinations. In the event that Buyer receives the Objection Notice during such ...
Earn-Out. (A) As part of the Purchase Price, subject to the terms of this Section 3.2, and except for a possible fourth payment under Section 3.2(D)(iii) below, Buyer shall make to BM and BMM up to three additional payments ("Annual Earn-Out Payments") and up to one additional payment during the first Earn-Out Year (the "Additional Earn-Out Payment"). The Annual Earn-Out Payments and the Additional Earn-Out Payment are referred to herein as an Earn-Out Payment", and, collectively, as the "Earn-Out Payments". Each Earn-Out Payment, if any, shall be made in cash to an account jointly designated by BM and BMM (transfer to which account BM and BMM agree constitutes good delivery to each of them of any such Earn-Out Payment). Not later than thirty (30) days following each Earn-Out Year (as defined in Section 3.2(B)), Buyer shall provide to the BM and BMM a preliminary statement (the "Preliminary Earn-Out Statement") setting forth the estimated amount of Operating Income (as defined in Section 3.2(F)) and the estimated amount of the Annual Earn-Out Payment, if any, payable for such Earn- Out Year in accordance with this Section 3.2, and a detailed description of the calculations of estimated Operating Income and the estimated amount of the Annual Earn-Out Payment. The information contained in each Preliminary Earn-Out Statement shall be subject to revision in the Definitive Earn-Out Statement (defined below). Not later than ninety (90) days following the end of each Earn- Out Year, Buyer shall prepare and deliver to BM and BMM a statement (the "Definitive Earn-Out Statement") setting forth the amount of Operating Income, the amount of the Annual Earn-Out Payment, if any, payable for such Earn-Out Year in accordance with this Section 3.2 and a detailed description of the calculations of Operating Income and the amount of the Annual Earn-Out Payment. Any Annual Earn-Out Payment reflected on a Definitive Earn-Out Statement shall be paid by Buyer, by wire transfer without setoff or deduction, except as, and only to the extent, provided in Section 12.2 below, to an account designated by BM and BMM, not later than the twentieth (20th) business day following the delivery of such Definitive Earn-Out Statement unless an objection is made to such Definitive Earn-Out Statement as provided in Section 3.2(H) below. Any objections made to the calculation of Operating Income and/or the amount of the Annual Earn-Out Payment or to the calculation of the Additional Earn-Out Payment shall b...
Earn-Out. (a) As additional consideration for the Purchased Assets, at such times as provided in Section 2.4(c)Section 2.4(b)(iii), Purchaser shall pay to the Seller a total earn-out payment (the “Earn-Out Payment”) equal to: the aggregate Earn-Out Revenue for each Earn-Out Store for such Earn-Out Store’s Calculation Period, as limited pursuant to Section 2.4(c).
(b) Procedures applicable to determination of the Earn-Out Payment.
(i) For each Earn-Out Store, on or before the date which is 60 days after the last day of such Earn-Out Store’s Calculation Period, Purchaser shall prepare and deliver to the Representative a written statement (the “Earn-Out Calculation Statement”) setting forth in reasonable detail its determination of the Earn-Out Revenue for such Earn-Out Store’s Calculation Period (the “Earn-Out Calculation”). Purchaser shall provide the Representative with copies of such records and work papers used or created in connection with preparation of such Earn-Out Calculation Statement as is reasonable to support such Earn-Out Calculation Statement. The Seller shall provide Purchaser with copies of such records and work papers for each Earn-Out Store as requested by Purchaser for determining such Earn-Out Store’s Earn-Out Revenue for the period of such Earn-Out Store’s Calculation Period occurring on and prior to the Closing Date.
(ii) The Representative shall have 45 days after receipt of such Earn-Out Store’s Earn-Out Calculation Statement (the “Earn-Out Review Period”) to review the Earn-Out Calculation Statement and the Earn-Out Calculation set forth therein. During the Earn-Out Review Period, the Representative and its accountants and other professional advisors shall have the right to inspect the Purchaser’s books and records during normal business hours at the Buyer’s offices, upon reasonable prior notice and to the extent and solely for purposes reasonably related to the determination of each Earn-Out Store’s Earn-Out Revenue. Prior to the expiration of the Earn-Out Review Period, the Representative may object to the Earn-Out Calculation by delivering a written notice of objection (an “Earn-Out Calculation Objection Notice”) to Purchaser. Any Earn-Out Calculation Objection Notice shall specify the items in the Earn-Out Calculation disputed by the Representative and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If the Representative fails to deliver an Earn-Out Calculation Objection Notice to Purcha...
Earn-Out. Nothing in this Agreement shall affect Executive's right to Earn-Out payments under the Stock Purchase Agreement.