Earnout Clause Samples
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Earnout. (a) After the Closing, subject to the terms and conditions set forth herein, the Eligible Earnout Recipients (as defined below) shall have the contingent right to receive an additional aggregate number of Pubco Ordinary Shares equal to (i) Fifty-Seven Million Five Hundred Thousand U.S. Dollars ($57,500,000), divided by (ii) the Redemption Price (subject to equitable adjustment for share splits, share dividends, combinations, recapitalizations and the like after the Closing, including to account for any equity securities into which such shares are exchanged or converted) (the “Earnout Shares”), with each Eligible Earnout Recipient receiving its Earnout Pro Rata Portion of such Earnout Shares, as additional consideration based on the Trading Price of Pubco Ordinary Shares during the five (5) year period after the Closing (the “Earnout Period”) or the achievement of certain clinical milestones specified below during the Earnout Period. If an Eligible Earnout Recipient transfers, sells, or otherwise disposes of any Pubco Ordinary Shares received as Merger Consideration (other than Excluded Transfers) prior to the issuance of the Earnout Shares, such Eligible Earnout Recipient’s participation in the Earnout Shares shall decrease proportionally to the number of such shares no longer held by such Eligible Earnout Recipient at the time of the Triggering Event. The Eligible Earnout Recipients shall be entitled to receive 100% of the Earnout Shares (and their right to receive such Earnout Shares shall vest and become due and issuable) upon the first of the following circumstances to occur to during the Earnout Period (each, a “Triggering Event”):
(i) the Trading Price equaling or exceeding $11.50 per share for five (5) consecutive Trading Days (the “Share Price Milestone”); or
(ii) the beginning of a Phase 3 clinical trial with the FDA (or approval by the FDA of a Biologics License Application without the need for a Phase 3 clinical trial) for the Target Companies’ clinical development program for the ▇▇▇▇▇▇▇ syndrome or any other clinical development program for Pharmaceutical Products developed by a Target Company (the “Clinical Milestone” and together with the Share Price Milestone, the “Earnout Milestones”). The share price threshold set forth above is referred to herein as the “Share Price Target”, and such Share Price Target shall be subject to equitable adjustment for share splits, share dividends, combinations, recapitalizations and the like after the Closin...
Earnout. (a) Sponsor hereby agrees that if, at the end of the Earn-Out Period no Earn-Out Vesting Event shall have occurred, then Sponsor shall, no later than ten (10) Business Days following the end of the Earn-Out Period, contribute, transfer, assign, convey and deliver to PubCo, and PubCo shall acquire and accept from Sponsor all of Sponsor’s right, title, and interest in, to and under, the Earn-Out Shares, for nil consideration (such Earn-Out Shares so contributed, transferred assigned, conveyed and delivered to PubCo by Sponsor, the “Earn-Out Forfeiture Shares”).
(b) PubCo and Sponsor acknowledge and agree that (i) each Earn-Out Forfeiture Share, when so contributed, transferred assigned, conveyed and delivered to PubCo by Sponsor in accordance with Section 7.2(a), shall be and be deemed to have been (x) surrendered and forfeited to PubCo by Sponsor for nil consideration and (y) cancelled by PubCo immediately upon surrender and forfeiture and cease to be issued and outstanding; and (ii) any other PubCo Shares which are not Earn-Out Forfeiture Shares shall continue to be issued and outstanding and owned by Sponsor for its own account.
(c) In addition to and not in place of the transfer restrictions set forth in Article V (and, for the avoidance of doubt, not limited by the exceptions or conditions set forth therein), subject to the consummation of the Initial Merger and the Acquisition Merger, Sponsor covenants and agrees that it shall not, during the period commencing on the Acquisition Effective Time and ending on the earlier to occur of (i) an Earn-Out Vesting Event or (ii) the last day of the Earn-Out Period (the “Earn-Out Restricted Period”), effect, undertake, enter into or publicly announce any Transfer with respect to any Earn-Out Shares. For the avoidance of doubt, Sponsor shall retain all of its rights as a shareholder of PubCo with respect to the Earn-Out Shares during the Earn-Out Restricted Period, including, without limitation, the right to vote any Earn-Out Shares that are entitled to vote, the right to appoint a proxy with respect to any vote of any Earn-Out Shares, and the right to receive any dividends or distributions in respect of such Earn-Out Shares. The foregoing restrictions in this Section 7.2(c) shall not apply to (i) Transfers of Earn-Out Shares in the event of completion of an Unqualified Liquidation Event; or (ii) Transfers required by Law. If any Transfer is made contrary to the provisions of this Section 7.2(c), such purported Tra...
Earnout. (a) From and after the Closing until the fifth anniversary of the Closing Date (the “Earnout Period”), promptly (but in any event within five Business Days) after the occurrence of any of the following (any one or more of which may occur at the same time), Holdings shall issue, up to an additional 6,000,000 Holdings Common Shares (the “Earnout Shares”) to the Cision Owner as additional consideration for the Contribution and Exchange (and without the need for additional consideration from the Cision Owner), fully paid and free and clear of all Liens other than applicable federal and state securities law restrictions and any Contract with Holdings or any of its Subsidiaries to which Cision Owner might then be a party:
(i) if the Holdings Common Share Price is greater than $13.00 (such share price as adjusted pursuant to this Section 2.02, the “Minimum Target”) for any period of 20 trading days out of 30 consecutive trading days, 2,000,000 Holdings Common Shares;
(ii) if the Holdings Common Share Price is greater than $16.00 (such share price as adjusted pursuant to this Section 2.02, the “Median Target”) for any period of 20 trading days out of 30 consecutive trading days, 2,000,000 Holdings Common Shares plus the amount of Holdings Common Shares issuable pursuant to Section 2.02(a)(i) if not previously issued; and
(iii) if the Holdings Common Share Price is greater than $19.00 (such share price as adjusted pursuant to this Section 2.02, the “Maximum Target”) for any period of 20 trading days out of 30 consecutive trading days, 2,000,000 Holdings Common Shares plus the amount of Holdings Common Shares issuable pursuant to Section 2.02(a)(i) and Section 2.02(a)(ii), in each case if not previously issued.
(b) Upon the first Change in Control to occur during the Earnout Period, Holdings shall, no later than immediately prior to the consummation of such Change in Control, issue to the Cision Owner as additional consideration for the Contribution and Exchange (and without the need for additional consideration from the Cision Owner), free and clear of all Liens other than applicable federal and state securities law restrictions and any Contract with Holdings or any of its Subsidiaries to which Cision Owner might then be a party, a number of Earnout Shares equal to the following:
(i) if the price per share paid or payable to the stockholders of Holdings in connection with such Change in Control is equal to or greater than the Minimum Target but less than the Median...
Earnout. (a) A Shareholder’s right to receive Earnout Shares pursuant to this Section 2.4, if any, is subject to the closing price of PubCo Shares equaling or exceeding, for any 20 trading days during a 30 consecutive trading day period, (i) $12.00 per share (the “First Earnout Condition”), (ii) $14.00 per share (the “Second Earnout Condition”) or (iii) $16.00 per share (the “Third Earnout Condition”; and each of the First, Second and Third Earnout Conditions an “Earnout Condition”), as applicable, in each case as equitably adjusted for share splits, share dividends, reorganizations and recapitalisations.
(b) As additional consideration for the transfer of Company Shares to PubCo pursuant to this Section 2, as promptly as reasonably practicable (but in any event, within ten Business Days) after the satisfaction of an Earnout Condition, PubCo shall issue and allot or cause to be issued and allotted to each applicable Shareholder the applicable Earnout Shares.
(c) In the event that an Earnout Condition is not satisfied prior to the fifth anniversary of the Closing, the contingent right and entitlement of such Shareholders to the applicable Earnout Shares shall be forfeited and cease to exist.
(d) Any issuance of Earnout Shares shall be treated as an adjustment to the consideration paid at the Closing, except to the extent otherwise required by Law, and an amount equal to the aggregate par value of the Earnout Shares so issued will be credited to the capital account of PubCo.
(e) To the extent that, prior to the fifth anniversary of the Closing, there is a bona fide third party transaction that results in PubCo Shares being converted into the right to receive cash or other consideration having a per share value (as adjusted for share splits, share dividends, reorganizations and recapitalisations, and in the case of any non-cash consideration, as provided in the definitive transactions documents for such transaction, or if not so provided, determined by the board of directors of PubCo in good faith) (i) equal to or in excess of any Earnout Condition that has not yet been satisfied, then the applicable Earnout Shares shall be issued to the relevant Shareholders effective as of immediately prior to the consummation of such transaction, or otherwise treated as so issued in connection therewith, so as to ensure that the recipients of such Earnout Shares shall receive such Earnout Shares, and all proceeds thereof, in connection with such transaction, and (ii) less than any ...
Earnout. (i) During the period commencing on the Business Combination Closing through the fifth anniversary following the Business Combination Closing (the “Earnout End Date”), unless the closing price of the Company’s Class A Shares (or any successor class of common shares listed on The New York Stock Exchange or The Nasdaq Stock Market) equals or exceeds $12.25 per share (as adjusted for share splits, dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30 consecutive trading day period or the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of its common shareholders having the right to exchange their common equity for consideration in cash, securities or other property which equals or exceeds $12.25 per share (as adjusted for share splits, dividends, reorganizations, recapitalizations and the like) (each an “Earnout Condition”), on the Earnout End Date or promptly thereafter (the “Earnout Forfeiture Date”), each BSOF Entity acknowledges and agrees that it shall surrender for no consideration any and all rights to such number of Class B Shares (including any Class A Shares into which such Class B Shares are convertible) equal to 30.0% of the number of Class B Shares held by such BSOF Entity immediately following the closing of the IPO (after accounting for any forfeitures required pursuant to Section 1(c) hereto) (the “Earnout Shares”). For the avoidance of doubt, the number of Earnout Shares immediately following the closing of the IPO shall be 157,500 Class B Shares.
(ii) Each BSOF Entity agrees that it shall not Transfer (as defined herein) any Earnout Shares until the earlier of (i) the date on which one or more of the Earnout Conditions has been satisfied and (ii) the Earnout Forfeiture Date. For the avoidance of doubt, the foregoing lock-up provisions are in addition to the lock-up provisions applicable to each BSOF Entity’s Class B Shares contained elsewhere in this Agreement. Any attempted Transfer of Earnout Shares prior to the earlier of (i) the date on which one or more of the Earnout Conditions has been satisfied and (ii) the Earnout Forfeiture Date, or any attempted Transfer of Earnout Shares pursuant to an agreement entered into prior to such date, shall be prohibited and void ab initio.
Earnout. (a) Following the Closing, and as additional consideration for the Transactions, within five (5) Business Days after the occurrence of a Triggering Event, SPAC shall issue or cause to be issued to each Eligible Holder (in accordance with its respective Pro Rata Share), the following shares of SPAC Class A Common Stock (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to SPAC Class A Common Stock occurring on or after the Closing (other than the conversion of SPAC Common Stock held by Sponsor into SPAC Class A Common Stock at the Closing), the “Earnout Shares”), upon the terms and subject to the conditions set forth in this Agreement and the Transaction Agreements:
(i) Upon the occurrence of Triggering Event I, a one-time issuance of 7,500,000 Earnout Shares;
(ii) Upon the occurrence of Triggering Event II, a one-time issuance of 5,000,000 Earnout Shares; and
(iii) Upon the occurrence of Triggering Event III, a one-time issuance of 2,500,000 Earnout Shares.
(b) For the avoidance of doubt, the Eligible Holders shall be entitled to receive Earnout Shares upon the occurrence of each Triggering Event; provided, however, that each Triggering Event shall only occur once, if at all, and in no event shall the Eligible Holders be entitled to receive more than an aggregate of 15,000,000 Earnout Shares.
(c) The SPAC Class A Common Stock price targets set forth in the definitions of Triggering Event I, Triggering Event II and Triggering Event III shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to SPAC Class A Common Stock occurring on or after the Closing (other than the conversion of SPAC Class B Common Stock held by Sponsor into SPAC Class A Common Stock at the Closing).
(d) Unless otherwise required by a Tax authority in connection with a good faith resolution of a Tax audit or other examination, the Parties acknowledge and agree (i) that any Earnout Shares paid to the Eligible Holders shall be treated as additional consideration for the Company Stock for all income Tax purposes (other than to the extent treated as interest under Section 483 of the Code or any similar provision of the Code), and (ii) to prepare and file a...
Earnout. (a) After the Closing, subject to the terms and conditions set forth herein, the Company Stockholders shall have the contingent right to receive up to an aggregate maximum of 20,000,000 shares of Purchaser Common Stock (subject to adjustment for share splits, share dividends, combinations, recapitalizations and the like after the Closing, including to account for any equity securities into which such shares are exchanged or converted) (the “Earnout Shares”), as additional consideration from the Purchaser based on the performance of the Purchaser Common Stock, as follows:
(i) In the event that the VWAP of the Purchaser Common Stock equals or exceeds $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) (the “First Share Price Target”) for twenty (20) out of any thirty (30) consecutive Trading Days during the period beginning on the Closing Date and ending on the 36-month anniversary of the Closing Date (such period the “Earnout Period”), then, subject to the terms and conditions of this Agreement, the Purchaser shall issue to each of the Company Stockholders such Company Stockholder’s Pro Rata Share of 6,666,667 Earnout Shares and the Sponsor shall be issued 1,500,000 Earnout Shares (the “First Earnout Share Payment”).
(ii) In the event that the VWAP of the Purchaser Common Stock equals or exceeds $17.50 per share (as adjusted for stock splits, stock dividends, combinations, reorganizations and recapitalizations) (the “Second Share Price Target”) for twenty (20) out of any thirty (30) consecutive Trading Days during the Earnout Period, the Purchaser shall issue to each of the Company Stockholders such Company Stockholder’s Pro Rata Share of 6,666,667 Earnout Shares and the Sponsor shall be issued 1,500,000 Earnout Shares (the “Second Earnout Share Payment”).
(iii) In the event that the VWAP of the Purchaser Common Stock equals or exceeds $20.00 per share (as adjusted for stock splits, stock dividends, combinations, reorganizations and recapitalizations) (the “Third Share Price Target”, and together with the First Share Price Target and the Second Share Price Target, the “Share Price Targets”) for twenty (20) out of any thirty (30) consecutive Trading Days during the Earnout Period, the Purchaser shall issue to each of the Company Stockholders such Company Stockholder’s Pro Rata Share of 6,666,666 shares of Purchaser Common Stock and the Sponsor shall be issued 1,500,000 Earnout Shares (the “Third Earnout Sha...
Earnout. In further consideration of the purchase of sixty-five percent (65%) of the Assets Related Business, Prime agrees to pay Moadel the amount (if any) specified below, in accordance with the provisions below. Any amounts payable pursuant to this Section are in addition to payment of the Purchase Price pursuant to Section 1.1, and no amount of the Purchase Price shall reduce amounts payable under this Section.
(a) The net income for Newco shall be calculated for the twelve consecutive calendar months ending on the one-year anniversary of the Closing Date, using the same methodology and principles reflected in the calculation of Base Net Income (as hereinafter defined) shown on Schedule 4.6 attached hereto (the "First Anniversary Net Income"). If the First Anniversary Net Income exceeds Base Net Income by at least twenty percent (20%), Prime agrees to pay Moadel an amount equal to the result obtained by (A) dividing the Purchase Price by five (5) and (B) multiplying such quotient by 9.75% (the "First Anniversary Earnout").
(b) The net income for Newco shall be calculated for the twelve consecutive calendar months ending on the two-year anniversary of the Closing Date, using the same methodology and principles reflected in the calculation of Base Net Income shown on Schedule 4.6 attached hereto (the "Second Anniversary Net Income"). To the extent that any one of the following requirements are met, Prime agrees to pay Moadel the respective amount determined as follows (the "Second Anniversary Earnout," and together with the First Anniversary Earnout, the "Earnout Payments"), with the understanding that a Second Anniversary Earnout, if any, will only be paid with respect to one of the following three alternatives, even if the requirements for more than one of the alternatives are satisfied:
(i) If Second Anniversary Net Income exceeds First Anniversary Net Income by at least twenty percent (20%) and a First Anniversary Earnout was due and payable in accordance with Section 4.6(a), then Prime agrees to pay to Moadel an amount equal to the result obtained by (A) dividing the Purchase Price by five (5) and (B) multiplying such quotient by 22.75%.
(ii) If (a) Second Anniversary Net Income exceeds First Anniversary Net Income by less than twenty percent (20%), (b) Second Anniversary Net Income exceeds Base Net Income (as hereinafter defined) by at least forty percent (40%), and (c) a First Anniversary Earnout was due and payable in accordance with Section 4.6(a), then ...
Earnout. (a) Buyer acknowledges that Seller and Affiliates of Seller have commenced the process of negotiating to lease space at the Property to Staples, ▇▇▇▇▇▇▇ Fabrics and Goody's (the "New Tenants"). Attached hereto as Exhibit K is a chart showing the estimated size of premises which would be leased by each of such tenants and the projected per square foot and aggregate first year fixed annual rentals for each New Tenant (the "Chart"). In the event that:
(i) the Buyer (or an Affiliate of Buyer) shall acquire title to the Property pursuant to this Agreement; and
(ii) Seller shall, no later than ninety (90) days after the date of Closing, cause to be delivered to Buyer a letter of intent to lease space at the Property executed by one of the New Tenants for space of at least the size indicated on the Chart and at a fixed annual rental rate of at least the rate indicated on the Chart for the respective New Tenant; and
(iii) Buyer (or an Affiliate of Buyer) and one or more of the New Tenants shall fully execute and unconditionally delivered a lease of retail space at the Property (the "New Lease") on or before two hundred and forty (240) days after the date of Closing (except as otherwise provided in subsection (d) herein) for premises of a size and first year fixed annual rental rate for the respective New Tenant as indicated on the Chart; and
(iv) the New Tenant shall, on or before one (1) year after the date of Closing, open for business in its new premises and commence the payment of fixed annual rent (except as otherwise provided in subsection (d) herein); then Seller shall be deemed to have earned a fee on account thereof in the sum of One Hundred Thousand ($100,000.00) Dollars (the "Earn-Out Fee"). The Earnout Fee shall be payable in full by Buyer upon satisfaction of the foregoing conditions.
(b) Buyer or its affiliated entity purchasing the Property shall have the unqualified right, in its sole and absolute discretion, to refuse to enter into any lease with any New Tenant for any reason whatsoever without incurring any obligation to Seller for the payment of the Earnout Fee or any other consideration with respect to such New Tenant. Except as otherwise provided in subsection (d) herein, if for any reason whatsoever the conditions set forth in subsection (a) are not fulfilled within the time periods set forth in subsection (a), no Earn-Out Fee or other compensation shall be payable to Seller or any of its Affiliates with respect to the leasing of the Property...
Earnout. (a) For each of the fiscal years ending December 31, 2017 and December 31, 2018 (each, an “Earnout Period”), the Partnership shall prepare and deliver to Proppants, within 90 days after the end of each such fiscal year, a written notice specifying the calculation of Partnership Adjusted EBITDA for such fiscal year (the “Partnership Adjusted EBITDA Notice”). If Partnership Adjusted EBITDA for the fiscal year ending December 31, 2017 exceeds $73.1 million, then the Partnership shall pay Proppants an additional $5,000,000 in cash with respect to the Contribution Transactions. If Partnership Adjusted EBITDA for the fiscal the year ending December 31, 2018 exceeds $150.6 million, then the Partnership shall pay Proppants an additional $5,000,000 in cash with respect to the Contribution Transactions.
(b) If Proppants objects to the calculation of Partnership Adjusted EBITDA with respect to an Earnout Period as set forth in the Partnership Adjusted EBITDA Notice, then Proppants shall provide the Partnership with written notice of same (which notice shall contain a reasonably detailed explanation of the basis for such objection) (such notice, an “Objection Notice”) within 30 days after the receipt of the Partnership Adjusted EBITDA Notice. If Proppants fails to object to the calculation of Partnership Adjusted EBITDA with respect to an Earnout Period as set forth in the Partnership Adjusted EBITDA Notice within such 30 days period, then Proppants shall be deemed to have agreed with and accepted the Partnership’s calculation of Partnership Adjusted EBITDA with respect to such Earnout Period for all purposes of this Agreement. If Proppants timely provides an Objection Notice as contemplated by this Section 2.3(b), then, for a period of 30 days after the Partnership’s receipt of such Objection Notice (the “Dispute Resolution Period”), the Partnership shall (i) provide Proppants with reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities and employees of the Partnership for purposes of evaluating the calculation of Partnership Adjusted EBITDA and (ii) reasonably cooperate with Proppants and its representatives in connection with such review, including providing on a timely basis all other information reasonably necessary or useful in connection with the review of the calculation of Partnership Adjusted EBITDA.
(c) If Proppants provides an Objection Notice in accordance with Section 2.3(b) a...