Earn-Out Payment Clause Samples
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Earn-Out Payment. (a) If, as of the close of business on September 30, 2019, the sum of (i) the total revenue (determined in accordance with GAAP) of Purchaser and its Affiliates (including the Company) resulting from sales of ECUs from the Closing up to and including September 30, 2019 (the “Product Revenue”) and (ii) the total dollar value of committed customer orders received by Purchaser and its Affiliates (including the Company) for ECUs that have been scheduled for delivery to such customer and represented by valid purchase orders as of the close of business on September 30, 2019 (the “Product Orders”) equals or exceeds $86,700,000 (the “Earn Out Benchmark”), Purchaser shall pay to Seller an amount of $30,000,000; provided, however, that if the aggregate amount of the Product Revenue and the Product Orders is less than the Earn Out Benchmark, then Purchaser shall pay to Seller an amount equal to (i) $30,000,000 multiplied by (ii) the percentage of the Earn Out Benchmark represented by the aggregate amount of the Product Revenue and the Product Orders, all as more particularly set forth in this Section 2.7. Any payment due under this Section 2.7 is referred to herein as the “Earn Out Payment” and is subject to Purchaser’s right of offset set forth in Section 10.3(i).
(b) Within 60 days of the expiration of the Earn Out Period, Purchaser shall deliver to Seller, with reasonable detail, its calculation of the Earn Out Payment, if any, and the components thereof. The Earn Out Payment shall be determined and calculated in accordance with GAAP. Following receipt of the calculation of the Earn Out Payment, if any, Seller shall be afforded a period of 30 days to review the same. To assist in any such review, Purchaser shall reasonably make available to Seller, upon request and during normal business hours, worksheets and other papers prepared in connection with the preparation of the calculation of the Earn Out Payment and the components thereof. At or before the end of the 30-day review period (the “Earn Out Review Period”), Seller shall either accept the calculation of the applicable Earn Out Payment or deliver to Purchaser a written notice disputing the same (a “Earn Out Dispute Notice”) setting forth a reasonable description of Seller’s objections and the amount of the adjustment to the Earn Out Payment which Seller believes should be made. Any items not identified within the Earn Out Dispute Notice shall be considered final and binding upon the Parties. If Purchaser’s ca...
Earn-Out Payment. (i) If Earn-Out Net Sales during the Earn-Out Period are less than $319,700,000 (the “Earn-Out Threshold”), then the Earn-Out Payment shall be zero dollars ($0);
(ii) If Earn-Out Net Sales during the Earn-Out Period are equal to or greater than the Earn-Out Threshold but less than $426,300,000 (the “Earn-Out Target”), then the Earn-Out Payment shall be an amount equal to the product of: (1) $25,000,000 multiplied by (2) a fraction (x) the numerator of which shall be an amount equal to (i) Earn-Out Net Sales during the Earn-Out Period minus (ii) the Earn-Out Threshold and (y) the denominator of which shall be an amount equal to (1) the Earn-Out Target minus (2) the Earn-Out Threshold; and
(iii) If Earn-Out Net Sales during the Earn-Out Period are equal to or greater than the Earn-Out Target, then the Earn-Out Payment shall be $25,000,000.
Earn-Out Payment. The Earn-out Payment payable by Buyer Parent to the Sellers in respect of each Earn-out Period shall be an amount equal to 50% of all Total Lenalidomide Net Sales during such Earn-out Period. For the purposes of this Section 2.7, the following definitions shall apply:
Earn-Out Payment. As additional consideration for the Company Shares, at such times as provided in this Section 3(b) if the Calculation Period EBITDA is $5,000,000 AUD or more, Buyer shall pay to Seller an amount, if any (the “Earn-out Payment”), equal to (i)(A) the Calculation Period EBITDA; multiplied by (B) the Earn-out Multiple; minus (ii) the total of $6,500,000 AUD plus the Top Up EBITDA. In the event that the number produced by the formula above is negative, no payment shall be made. In no event shall Buyer be obligated to pay Seller more than Three Million Five Hundred Thousand Dollars ($3,500,000 AUD) in the aggregate for Earn-out Payment. The parties agree to release the Earn-out Payment from the Escrow Account and pay this amount to Seller pursuant to the terms and conditions of this Agreement and the Escrow Agreement.
Earn-Out Payment. If, during the period beginning January 1, 2022 and ending on December 31, 2022 (the “Earn-Out Period”), the Group Companies achieve certain Adjusted EBITDA targets as set forth in this Section 2.6.1 (the “Earn-Out Milestone”), then Buyer shall pay, or cause to be paid, to Seller and to the individuals set forth on Schedule 1.2(a) and Schedule 1.2(b) an aggregate amount not to exceed $50,000,000 subject to the proviso in Section 2.6.1(c) (the “Earn-Out Payment”), which shall be payable in accordance with Section 2.6.2. The Earn-Out Payment shall be calculated as follows:
(a) If the Adjusted EBITDA of the Group Companies during the Earn-Out Period is less than the Earn-Out Threshold, the Earn-Out Payment shall be zero dollars ($0); and
(b) If during the Earn-Out Period, the Group Companies achieve an Adjusted EBITDA (i) equal to or greater than the Earn-Out Target, the Earn-Out Payment shall be $50,000,000 (subject to the proviso in Section 2.6.1(c)); or (ii) less than the Earn-Out Target, but greater than the Earn-Out Threshold, the Earn-Out Payment shall be an amount equal to the product of: (A) $50,000,000 (subject to the proviso in Section 2.6.1(c)) multiplied by (B) a fraction (1) the numerator of which shall be the amount by which the Adjusted EBITDA achieved exceeds the Earn-Out Threshold and (2) the denominator of which shall be an amount equal to the Earn-Out Target minus the Earn-Out Threshold.
(c) Notwithstanding anything to the contrary, in no event shall the Earn-Out Payment exceed $50,000,000; provided, that the amount of the Earn-Out Payment will be increased by the lesser of (i) the amount of the final calculation of Accrued Income Taxes solely with respect to clause (g) of the definition of Accrued Income Taxes and (ii) the product of (y) the amount of the Earn-Out Compensatory Payment (if any) and (z) 26%. For the avoidance of doubt, an illustrative example of the calculation of Adjusted EBITDA is set forth on Exhibit B-1.
Earn-Out Payment. (a) For purposes of this Section 2.5:
Earn-Out Payment. (i) For the purposes of this Agreement, the "EARN-OUT PAYMENT" shall mean one and one-half percent (1 1/2%) of the Total Annual Net Sales in excess of U.S. $64,900,000. An Earn-Out Payment shall be payable to each Earn-Out Payee within ninety (90) days of the end of each fiscal year of the Subject Companies during the Earn-Out Period. For example, if such Total Annual Net Sales for a fiscal year are U.S. $65,900,000, each Earn-Out Payee shall receive U.S. $15,000.
(ii) Total Annual Net Sales shall be calculated on the basis of invoiced currency, which if not U.S. dollars, shall be converted to U.S. dollars in accordance with GAAP, using the conversion rate and methodology utilized in the preparation of Buyer's financial statements.
(iii) Buyer will determine the amount of the Earn-Out Payments with respect to each fiscal year during the Earn-Out Period, which determination will be reviewed by the independent accountant of the Subject Companies. No later than ninety (90) days after the end of each fiscal year of the Subject Companies during the Earn-Out Period, Buyer will deliver to the Earn-Out Payees (i) a certificate (the "EARN-OUT CERTIFICATE") setting forth Buyer's calculation of the Earn-Out Payments for such fiscal year, and (ii) the Earn-Out Payments payable to each Earn-Out Payee as reflected on the Earn-Out Certificate. Buyer will maintain, or cause the Subject Companies to maintain, complete and accurate books of account and records of the Subject Companies during the Earn-Out Period as is necessary to compute Total Annual Net Sales under this Agreement. The Earn-Out Payees and their representatives shall have the right, at reasonable times during business hours, to inspect, audit and make extracts from all of the records, files and books of the Subject Companies relating to the Earn-Out Payment (the "EARN-OUT RECORDS") for the purposes of verifying the amount of the consideration payable pursuant to this Section 2.3. All Earn-Out Records shall be subject to the confidentiality restrictions of the Restricted Parties set forth in Section 6.4, and each representative of the Earn-Out Payees who examines the Earn-Out Records shall agree in advance to be bound thereby.
(iv) The Earn-Out Payees shall have thirty (30) days from the receipt of the Earn-Out Payment to notify Buyer if they dispute the amount of the Earn-Out Payment. If Buyer has not received notice of any such dispute within such 30-day period, the Earn-Out Payment shall be final. If the E...
Earn-Out Payment. Following the Closing and in addition to the Merger Consideration Shares, PubCo shall issue an aggregate of up to 10,000,000 PubCo Ordinary Shares (which number shall be appropriately adjusted in accordance with Section 2.8, the “Earn-out Shares”) to the Company Shareholders who hold Company Shares as of immediately prior to the Initial Merger Effective Time on a pro rata basis and as follows:
Earn-Out Payment. On and subject to the terms and conditions of this Agreement and the Transaction Documents, and at all relevant times thereunder, Buyer and Attis shall, on a joint and several basis, pay the greater of the following to Seller and Seller’s Permitted Designee (the “Earn-Out Payment”): (i) $2,266,667 (“Floor Price”), plus (ii), if, and only if approved by Buyer’s Board of Directors on an annual basis, 8% of Attis’ annual Consolidated EBITDA, and (iii) 8% of Buyer’s and/or Attis’ MRPA Net Proceeds.
Earn-Out Payment. As further consideration for the Company Shares, following the Closing the Selling Shareholders shall be eligible to the following payments:
(i) if the Company’s Revenues during the Evaluation Period exceed $10,000,000 (converting non US$ amounts into US$ as of the date of the invoice relating to such Revenue amount) (such excess amount, the “Excess Amount”), then, the Selling Shareholders shall receive a payment equal to twice the Excess Amount (the “Excess Payment”). 90% of the Excess Payment will be paid to the Selling Shareholders in cash by wire transfer into the account designated by them and as per the allocation as set forth on Exhibit A within 30 days of finalizing the Acquired Companies' audited financial statements. Any invoiced sale, licensing or distribution of Company Products delivered in the ordinary course of business during the Evaluation Period which has not lead to gross proceeds received by the Acquired Companies within the Evaluation Period, but which are received subsequent to the Evaluation Period, shall entitle the Selling Shareholders to receive from the Purchaser an amount corresponding to a proportionate increase of the Excess Payment based on such additional received payments. The remaining 10% of the Excess Payment will be paid to the Selling Shareholders by way of a grant of stock options of the Purchaser within 30 days of finalizing the Purchaser’s audited financial statements directly to the Founders as per the allocation as set forth on Exhibit A. Such stock options will be valued based on the fair market value of such stock options on the date of their grant according to the B&S model, will vest in three equal tranches over 3 years, with the first tranche vesting one year following the Evaluation Date, and will have an exercise price equal to (rounded to nearest 1/100) the closing trading price of the Purchaser’s Ordinary Shares on the Nasdaq Stock Exchange on the date of their grant;
(ii) for every design win achieved from the date of the Closing until the Evaluation Date with expected Revenues of more than $1,000,000 per year, the Selling Shareholders will receive $1,000,000 (the “Design Win Payment” and together with the Closing Payment and the Excess Payment, the “Purchase Price”), 90% of which will be paid in cash by wire transfer into the account designated by them and as per the allocation among them as set forth on Exhibit A and the remainder will be paid to the Selling Shareholders by way of a grant of stock opti...