Common use of Earn-Out Payments Clause in Contracts

Earn-Out Payments. (i) Promptly, but in any event within five (5) Business Days, after the Escrow Agent’s receipt of joint written instructions (“Earn-Out Payment Instructions”) from the DT Representative (on behalf of Purchaser) and the Seller Representative that for any Earn-Out Year there has been a final determination in accordance with Section 2.2 of the Share Exchange Agreement (but subject to Sections 2.4 and 2.5 of the Share Exchange Agreement) with respect to the Earn-Out Payment for such Earn-Out Year or the Alternative Earn-Out Payment (the date that the Escrow Agent receives Earn-Out Payment Instructions with respect to any Earn-Out Year, an “Earn-Out Release Date”), the Escrow Agent shall distribute Escrow Property from the Escrow Account in accordance with such Earn-Out Payment Instructions (A) to the Sellers in an amount equal to the Earn-Out Payment (excluding for the avoidance of doubt, the amount of any Accrued Dividends payable by the Purchaser separate from the Escrow Account) less the sum of (I) the Reserved Amount (as defined below) as of the date of such payment, and (II) the amount of any Indemnification Claims that have been paid from the Escrow Account prior to such time but have not previously been used to reduce the amount of any prior Earn-Out Payment (but net of any prior Earn-Out Payments that have not yet been paid and are still being retained in the Escrow Account as of such time for Indemnification Claims that are still Pending Claims as of such time), up to a maximum amount equal to such Earn-Out Payment, and (B), after the last Earn-Out Year only, to Purchaser any portion of any Earn-Out Payments that were not earned by the Sellers in accordance with the Share Exchange Agreement. For the determination of the Escrow Shares to be withheld for the Reserved Amount, the Escrow Shares shall be valued at the Purchaser Share Price as of the applicable Earn-Out Release Date.

Earn-Out Payments. As additional consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller Earn-Out Payments, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) PromptlyOne Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, but in any event within five and (5ii) Business DaysThirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, after the Escrow Agent’s receipt of joint written instructions (an “Earn-Out Payment Instructions”) from Payment” and collectively, the DT Representative (on behalf of Purchaser) and the Seller Representative that for any “Earn-Out Year there has been a final determination Payments”). For the avoidance of doubt, (i) Buyer shall be required to pay Earn-Out Payments to Seller in accordance with Section 2.2 the terms of this Agreement, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be payable to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Share Exchange Agreement (but subject Inventory acquired by Buyer pursuant to Sections 2.4 and 2.5 this Agreement. In addition, in the event all or substantially all of the Share Exchange Agreement) Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration of the Earn-Out Period and prior to the Maximum Earn-Out Amount being paid, Buyer shall cause the acquiring party to assume all of Buyer’s obligations with respect to the Earn-Out Payment for such Earn-Out Year Payments under this Section 2.07. Buyer makes no representations, warranties, covenants, promises or the Alternative Earn-Out Payment (the date that the Escrow Agent receives Earn-Out Payment Instructions with respect to any Earn-Out Year, an “Earn-Out Release Date”), the Escrow Agent shall distribute Escrow Property from the Escrow Account in accordance with such Earn-Out Payment Instructions (A) guarantees as to the Sellers in an amount equal to the Earn-Out Payment (excluding for the avoidance of doubt, the amount of any Accrued Dividends payable by the Purchaser separate from the Escrow Account) less the sum of (I) the Reserved Amount (as defined below) as of the date of such payment, and (II) the amount of any Indemnification Claims that have been paid from the Escrow Account prior to such time but have not previously been used to reduce the amount of any prior Earn-Out Payment (but net of any prior Earn-Out Payments that have not yet been paid and are still being retained in the Escrow Account as of such time for Indemnification Claims that are still Pending Claims as of such time), up to a maximum amount equal to such Earn-Out Payment, and (B), after the last Earn-Out Year only, to Purchaser any portion of any Earn-Out Payments that were not may be earned by Seller during the Sellers in accordance with the Share Exchange Agreement. For the determination of the Escrow Shares to be withheld for the Reserved Amount, the Escrow Shares shall be valued at the Purchaser Share Price as of the applicable Earn-Out Release DatePeriod.

Earn-Out Payments. (a) Earn-Out Payments. For the twelve (12) month period ended December 31, 2022 (the “Earn-Out Period”), as additional consideration for the transactions contemplated hereby, Purchaser shall pay or cause to be paid to Seller, in cash, an amount as determined in accordance with this Section 1.7 (the “Earn-Out Amount”). Within thirty (30) days following delivery of the Company’s audited consolidated statement of financial position or balance sheet of the Company as at the end of the Earn-Out Period and the related audited consolidated income statement, audited consolidated statement of comprehensive income, audited consolidated statement of cash flows and audited consolidated statement of changes in equity (the “Audited Financial Statements”) for the Earn-Out Period by a “Big 4” or other nationally recognized independent certified public accountant registered with the PCAOB (the “Purchaser Auditor”), Purchaser shall (i) Promptlyprepare a good faith calculation (the “Proposed Earn-Out Calculation”) of Adjusted EBITDA for the Earn-Out Period and the applicable amount payable in connection with the Earn-Out Amount, but if any, as determined in accordance with Section 1.7(b) (any such amount, as applicable, the “Proposed Earn-Out Amount”), and (ii) deliver to Seller a copy of the Proposed Earn-Out Calculation together with such Audited Financial Statements and other supporting documentation describing in reasonable detail how the Proposed Earn-Out Amount was calculated or otherwise determined (the “Earn-Out Statement”). Following the final and conclusive determination of the Earn-Out Amount in accordance with this Section 1.7 (the “Final Earn-Out Amount”), if the Final Earn-Out Amount exceeds $0.00, Purchaser shall, as promptly as practicable and in any event within five ten (510) Business DaysDays after such final determination, after the Escrow Agent’s receipt of joint written instructions (“Earn-Out Payment Instructions”) from the DT Representative (on behalf of Purchaser) and the Seller Representative that for any Earn-Out Year there has been a final determination in accordance with Section 2.2 of the Share Exchange Agreement (but subject to Sections 2.4 and 2.5 of the Share Exchange Agreement) with respect to the Earn-Out Payment for such Earn-Out Year pay, or the Alternative Earn-Out Payment (the date that the Escrow Agent receives Earn-Out Payment Instructions with respect to any Earn-Out Year, an “Earn-Out Release Date”), the Escrow Agent shall distribute Escrow Property from the Escrow Account in accordance with such Earn-Out Payment Instructions (A) to the Sellers in an amount equal to the Earn-Out Payment (excluding for the avoidance of doubt, the amount of any Accrued Dividends payable by the Purchaser separate from the Escrow Account) less the sum of (I) the Reserved Amount (as defined below) as of the date of such payment, and (II) the amount of any Indemnification Claims that have been paid from the Escrow Account prior to such time but have not previously been used to reduce the amount of any prior Earn-Out Payment (but net of any prior Earn-Out Payments that have not yet been paid and are still being retained in the Escrow Account as of such time for Indemnification Claims that are still Pending Claims as of such time), up to a maximum amount equal to such Earn-Out Payment, and (B), after the last Earn-Out Year only, to Purchaser any portion of any Earn-Out Payments that were not earned by the Sellers in accordance with the Share Exchange Agreement. For the determination of the Escrow Shares cause to be withheld for the Reserved Amountpaid, the Escrow Shares shall be valued at the Purchaser Share Price as of the applicable Earn-Out Release DateAmount to Seller by wire transfer of immediately available funds to an account designated in writing by Seller.