Earn-Out Clause Samples
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Earn-Out. (a) The Seller Members shall have the right to receive, and Purchaser shall pay to such Persons, additional cash proceeds, based on the performance of the Company as calculated and determined in the manner set forth in this Section 1.1, which additional proceeds shall constitute additional Purchase Price.
(b) If Adjusted Earnings for any Earn-Out Year, are greater than $1,000,000 but less than or equal to $2,000,000, then Purchaser shall pay, in accordance with Section 1.1(l), the Seller Members a total aggregate amount (the “First Tier Earn-Out Payment”) equal to: (i) the product of (A) the amount of Adjusted Earnings in excess of $1,000,000, but less than or equal to $2,000,000 and (B) 0.40.
(c) If Adjusted Earnings for any Earn-Out Year, are greater than $2,000,000 but less than or equal to $3,000,000, then Purchaser shall pay, in accordance with Section 1.1(l), the Seller Members a total aggregate amount (the “Second-Tier Earn-Out Payment”) equal to: (i) the First Tier Earn-Out Payment, plus (ii) the product of (A) the amount of Adjusted Earnings in excess of $2,000,000, but less than or equal to $3,000,000 and (B) 0.50.
(d) If Adjusted Earnings for any Earn-Out Year, are greater than $3,000,000 but less than or equal to $4,000,000, then Purchaser shall pay, in accordance with Section 1.1(l), the Seller Members a total aggregate amount (the “Third-Tier Earn-Out Payment”) equal to: (i) the First Tier Earn-Out Payment, plus (ii) the Second-Tier Earn-Out Payment, plus (iii) the product of (A) the amount of Adjusted Earnings in excess of $3,000,000, but less than or equal to $4,000,000 and (B) 0.70.
(e) If Adjusted Earnings for any Earn-Out Year, are greater than $4,000,000, but less than or equal to $6,000,000, then Purchaser shall pay, in accordance with Section 1.1(l), the Seller Members a total aggregate amount (the “Fourth-Tier Earn-Out Payment”) equal to: (i) the First Tier Earn-Out Payment, plus (ii) the Second-Tier Earn-Out Payment, plus (iii) the Third-Tier Earn-Out Payment, plus (iv) the product of (A) the amount of Adjusted Earnings in excess of $4,000,000, but less than or equal to $6,000,000 and (B) 0.85.
(f) If Adjusted Earnings for any Earn-Out Year are greater than $6,000,000, then Purchaser shall pay a total aggregate amount (the “Fifth-Tier Earn-Out Payment”) equal to: (i) the First Tier Earn-Out Payment, plus (ii) the Second-Tier Earn-Out Payment, plus (iii) the Third-Tier Earn-Out Payment, plus (iv) the Fourth-Tier Earn-Out Payment, plu...
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. (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) In addition to the Purchase Price, if the Company meets or exceeds (i) the Revenue Target and (ii) the Product Margin Target, Purchaser shall pay in cash to Sellers, on a pro-rata basis, the Earn-Out Amount less the product of the Stock Consideration and the ADS Appreciation Ratio (the “Earn-Out”) exclusive of any Tax, fees or other expenses of any kind; provided that the exchange rate shall be fixed at the Exchange Rate for the calculation of the Earn-Out. The Earn-Out shall not exceed the Earn-Out Amount.
(b) Within ten (10) business days after the announcement date of Parent’s fourth quarter fiscal year 2007, Purchaser shall prepare, or cause to be prepared, and deliver to the Sellers’ Representative (i) a statement setting forth the Product Revenues for the calendar year 2007, each component used in the calculation thereof, the ADS Appreciation Ratio and the amount of the Earn-Out determined in accordance with Section 2.4(a) (the “Earn-Out Statement”), which shall be prepared in accordance with the Adjusted Korean GAAP, at Purchaser’s cost and expense, and (ii) such documentation, if any, as may be reasonably necessary to enable the Sellers’ Representative to determine such amount. Concurrently with the delivery of the Earn-Out Statement, Purchaser shall deposit into a nominated account as established by the Sellers’ Representative for payment to Sellers, on a per share basis, the amount of the Earn-Out, if any, specified in the Earn-Out Statement.
(c) After receipt from Purchaser of the Earn-Out Statement and, if applicable, the Earn-Out, Sellers shall have the right, at its cost and expense, and upon not less than seven (7) days’ prior written notice to Purchaser, to (i) meet with Purchaser and the Company Accounting Firm to discuss Purchaser’s calculation of the amount of the Product Revenues, the ADS Appreciation Ratio and the Earn-Out as set forth in the Earn-Out Statement and (ii) have reasonable access during normal business hours to inspect the books and records of the Company and working papers (including those prepared by advisors and other third parties, to the extent permitted thereby) relating to such calculation. If the Sellers’ Representative fails to challenge Purchaser’s determination of the Product Revenues, the ADS Appreciation Ratio and the amount of the Earn-Out by the delivery of a written notice to Purchaser (the “Earn-Out Dispute Notice”) within sixty (60) days after receipt by the Sellers’ Representative of the Earn-Out Sta...
Earn-Out. (a) Earn-out Payments. As additional Merger Consideration, at such times as provided in Section 1.23(d), Purchaser shall pay in cash, if earned pursuant to the terms of this Agreement, to Stockholders’ Agent on behalf of the Securityholders, with respect to each Calculation Period within the Earn-out Period an amount, if any (each, an “Earn-out Payment”), equal to (i) (A) the Net Bookings Amount for such Calculation Period, divided by (B) the Net Bookings Target for such Calculation Period multiplied by (ii) the Earn-out Amount for such Calculation Period. Notwithstanding [***] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. the foregoing, if the Net Bookings Amount for a particular Calculation Period is not greater than or equal to 50% of the applicable Net Bookings Target, no Earn-out Payment shall be due for such Calculation Period. Additionally, in the event the Net Bookings Amount for a particular Calculation Period is greater than or equal to the Stretch Net Bookings Target for such Calculation Period, Purchaser shall pay Stockholders’ Agent on behalf of the Securityholders, an amount, if any (each, a “Stretch Earn-out Payment”) equal to the Stretch Earn-out Amount for such Calculation Period. For purposes of clarity, in the event the Net Bookings Amount for a particular Calculation Period is less than the Stretch Net Bookings Target for such Calculation Period, no Stretch Earn-out Payment shall be paid. Notwithstanding anything contained herein to the contrary, the Net Bookings Amount attributable to Non-Recurring Bookings shall be limited to 20% of the aggregate Net Bookings Amount (“Non-Recurring Maximum”) for purposes of calculating any Earn-out Payment or Stretch Earn-out Payment. If any Company Product is sold together with any other product of Purchaser (collectively, a “Bundled Product”), then the New Bookings attributable to the Company Product sold as part of a Bundled Product shall be equal to the product of (X) the per unit weighted average price (calculated on an annualized basis) of New Bookings sold on a standalone basis throughout the applicable Calculation Period (excluding (i) pilots and (ii) pilot conversions that are not priced on a per unit basis), multiplied by (Y) the number of units of the Company Product sold as part of the Bundled Product, multipl...
Earn-Out. (a) Promptly following the finalization of Parent’s audited financial results for the year ended on December 31, 2021 (the “Measurement Date”), and in any event no later than April 30, 2022, Purchaser shall determine whether or not a Full Earn-Out Consideration Event or Partial Earn-Out Consideration Event has occurred (the “Earn-Out Determination”) and shall provide written notice of such determination to Seller, which notice shall include the Realized CM (as defined below) (the “Earn-Out Notice”). Upon receipt of the Earn-Out Notice, Seller (and to the extent reasonably requested, its Representatives) will be given reasonable access upon reasonable notice to Purchaser’s (or the applicable Purchaser Designee’s) relevant books, records, workpapers and personnel related to the information and calculations used to calculate the Realized CM (subject to customary confidentiality, hold harmless or release agreements related to such access) during business hours for the limited purpose of verifying such amount.
(b) If Purchaser does not receive any written objections from Seller to the amount of the Realized CM or Purchaser’s Earn-Out Determination within 30 days following Purchaser’s delivery of the Earn-Out Notice to Seller then Seller shall be deemed to have no objection to the Realized CM and the Earn-Out Determination, which shall become final and binding on the Parties. If Seller does not agree that the Earn-Out Notice contains the correct Earn-Out Determination Seller shall promptly (but not later than 30 days after the delivery of the Earn-Out Notice) give written notice to Purchaser of any objections thereto (describing in reasonable detail the nature of the disagreement asserted), and all undisputed amounts with respect to such calculation shall thereupon become binding, final and conclusive upon the Parties and enforceable in a court of law, absent manifest error or fraud. Purchaser and Seller shall negotiate in good faith to resolve any disputes and agree upon the resulting calculations in such statement. If Seller and Purchaser resolve such disputes within 30 days after the applicable written notice of objection is delivered by Seller to Purchaser (any such period, an “Earn-Out Reconciliation Period”), the applicable calculation and resulting Realized CM and Earn-Out Determination shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all Parties and enforceable in a court of law, absent manifest error or fraud. ...
Earn-Out. (a) Subject to Section 3.3(b), as additional contingent deferred consideration, the Stockholders collectively (and with respect to each individual Stockholder, in accordance with its respective Pro Rata Shares) shall be eligible to receive after Closing up to an aggregate amount of $1,500,000 (each, an “Earn-Out Payment” and collectively, the “Earn-Out Payments”) comprised of the following two potential payments:
(i) An aggregate amount equal to $300,000 (the “First Earn-Out Payment”) upon satisfaction in the good faith determination of the Buyer (subject to the dispute resolution provision set forth in Section 3.3(b)), of the First Earn-Out Criteria by no later than the date that is four (4) months immediately following authorization by the Chief Executive Officer of Parent to commence the Charleston Plant Expansion Phase I (the “First Earn-Out End Date”).
(ii) An aggregate amount equal to $1,200,000 (the “Second Earn-Out Payment”) upon satisfaction in the good faith determination of the Buyer (subject to the dispute resolution provision set forth in Section 3.3(b)), of the Second Earn-Out Criteria by no later than the date that is twelve (12) months immediately following authorization by the Chief Executive Officer of Parent to commence the Charleston Plant Expansion Phase II (the “Second Earn-Out End Date” and each of the First Earn-Out End Date and the Second Earn-Out End Date, an “Earn-Out End Date”). Upon reasonable advanced written request by the Stockholders’ Representative, Buyer agrees to provide periodically reasonable updates on the progress of each Earn-Out Criteria to the Stockholders’ Representative. If so earned, each Earn-Out Payment will be satisfied by or on behalf of Buyer, at Buyer’s sole option, in any of the following: (i) cash in accordance with written instructions from the Stockholders, (ii) shares of Buyer Common Stock (the “Earn-out Shares”) in book-entry form through DTC for the benefit of the Stockholders or (iii) some combination of such cash and Earn-Out Shares; provided that, with respect to clauses (ii) and (iii), each Stockholder provides the DTC Information to the Buyer and makes the Private Placement Representations in a duly executed certificate in the form attached hereto as Exhibit C. Notwithstanding anything contained herein, in order for a Stockholder to be eligible to receive its Pro Rata Share of the Earn-Out Payment, such Stockholder shall not be in breach of any representation or warranty or covenant or obligat...
Earn-Out. (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below.
(ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sectio...
Earn-Out. Nothing in this Agreement shall affect Executive's right to Earn-Out payments under the Stock Purchase Agreement.
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 Shareholders 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, it will conduct the Retained Operations in the Phoenix and Tucson, Arizona metropolitan area as a separate division of PentaStar with no other operations (the "Partel Division"). The operations of the Partel Division will be conducted in accordance with the cost structure set forth in Exhibit 2.1(n) to this Agreement.
(ii) As soon as reasonably practicable after the end of the Earn-Out Period, and in any event by April 30, 2001, PentaStar will cause the independent auditors who audit its financial statements for the year 2000 to prepare a separate income statement of the Partel Division for the Earn-Out Period (which need not be audited) in accordance with GAAP on a basis consistent with the historical accounting practices of PentaStar, and a written calculation of the Earn-Out Amount (collectively, the "Earn-Out Financial Statements"). PentaStar will promptly provide a copy of the Earn-Out Financial Statements to the Shareholders. Within 20 days after receipt of the Earn-Out Financial Statements, each of PentaStar and the Shareholders will, 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 for such proposed adjustments. PentaStar shall make the books of the Partel Division (and, to the extent relevant, the books of PentaStar) available to the Shareholders' Agent for purposes of reviewing and verifying the Earn-Out Financial Statements. The failure by PentaStar or the Shareholders to object to the Earn-Out Financial Statements within such 20-day period will be deemed to be an acceptance by such Person of the Earn-Out Financial Statements. If any adjustments to the Earn-Out Financial Statements are proposed by PentaStar or the Shareholders within such 20-day period, the dispute shall be resolved as provided in Section 2.1(p). The fees and expenses of the independent auditors for the preparation of the Earn-Out Financial Statements will be paid 50% by PentaStar and 50% by the Shareholders. Such fees and expenses shall not include any portion of the...