Common use of Earnout Payments Clause in Contracts

Earnout Payments. In the event that, at any time following the Closing Date, the Equityholders, Bonus Recipients or Convertible Noteholders become entitled to receive any portion of the Earnout Consideration pursuant to this Section 2.13 (each, an “Earnout Payment”), Parent shall (i) deposit and issue to Parent’s transfer agent a number of shares of Parent Common Stock equal to the number of Earnout Shares issuable to the Founders with respect to such Earnout Payment as set forth in the Distribution Waterfall, issued in the names of such Founders in book-entry form; provided, however, notwithstanding any other provision of this Agreement in no event shall the aggregate number of shares of Parent Common Stock to be issued pursuant to this Agreement exceed 19.99% of the total outstanding shares of Parent Common Stock as of immediately prior to the Effective Time, (ii) deliver to the Company Stockholders (other than the holders of Dissenting Stock) and in accordance with Pro Rata Deferred Payment Shares, cash in an amount equal to the Earnout Cash Amount payable to such Company Stockholders with respect to such Earnout Payment as set forth in the Distribution Waterfall, and (iii) deliver to the Surviving Corporation (for the benefit of the Optionholders, Bonus Recipients and Convertible Noteholders, and in accordance with the Pro Rata Deferred Payment Shares), cash in an amount equal to the Earnout Cash Amount payable to such Optionholders, Bonus Recipients and Convertible Noteholders with respect to such Earnout Payment as set forth in the Distribution Waterfall; provided, however, that if such Earnout Payment represents Earnout Consideration payable pursuant to Section 2.13(b)(i) above, then (x) a number of Earnout Shares equal to fifteen percent (15%) of all Earnout Shares comprising such Earnout Payment (the “Earnout Escrow Shares”) and (y) an amount in cash equal to fifteen percent (15%) of the Earnout Cash Amount comprising such Earnout Payment (the “Earnout Escrow Cash Amount”) shall not be issued or paid to the Equityholders, Bonus Recipients or Convertible Noteholders and shall instead be delivered by Parent to the Escrow Agent, to be held by the Escrow Agent in the Escrow Account in accordance with the provisions of the Escrow Agreement. Parent shall deliver each such Earnout Payment not later than thirty (30) days after the filing of Parent’s Annual Report on Form 10-K with the U.S. Securities and Exchange Commission for the fiscal year during which the applicable Earnout Period ends. To the extent that Parent delivers any Earnout Payment to the Company Stockholders and the Surviving Corporation as provided herein, such payment shall be deemed to satisfy in full Parent’s obligations in respect thereof.

Earnout Payments. (a) In the event thatthat and only in the event that the Buyer Parties or their Affiliates attain the milestone-based objectives for the Business set forth in Annex A (the “MBOs”) for fiscal years 2011, at any time following 2012 or 2013, Buyer will pay to Seller as additional consideration for the Closing Date, the Equityholders, Bonus Recipients or Convertible Noteholders become entitled to receive any portion of the Earnout Consideration pursuant to Purchased Assets additional amounts in accordance with this Section 2.13 1.7 and Annex A hereto (eacheach such payment, if any, an “Earnout Payment”), Parent shall (i) deposit and issue to Parent’s transfer agent a number of shares of Parent Common Stock equal to the number of Earnout Shares issuable to the Founders with respect to such . An Earnout Payment for any such fiscal year shall only become due and payable by Buyer in the event that and only in the event that Buyer Parties or their Affiliates achieve an MBO for such fiscal year as set forth in on Annex A and Xxxxxx continues to serve the Distribution Waterfall, issued in Buyer Parties as of the names end of such Founders in book-entry form; provided, however, notwithstanding any other provision fiscal year (unless such failure to serve the Buyer Parties is as a result of this Agreement in no event shall the aggregate number of shares of Parent Common Stock to be issued pursuant to this Agreement exceed 19.99% of the total outstanding shares of Parent Common Stock as of immediately prior to the Effective Time, (ii) deliver to the Company Stockholders (other than the holders of Dissenting Stock) and in accordance with Pro Rata Deferred Payment Shares, cash in an amount equal to the Earnout Cash Amount payable to such Company Stockholders with respect to such Earnout Payment as set forth in the Distribution Waterfall, and (iii) deliver to the Surviving Corporation (for the benefit of the Optionholders, Bonus Recipients and Convertible Noteholders, and in accordance with the Pro Rata Deferred Payment SharesXxxxxx death or disability), cash in an amount equal to the Earnout Cash Amount payable to such Optionholders, Bonus Recipients and Convertible Noteholders with respect to such Earnout Payment as set forth in the Distribution Waterfall; provided, however, that if Xxxxxx resigns for Good Reason (as such Earnout Payment represents Earnout Consideration payable pursuant term is defined in the Employment Agreement (as defined below)) or is terminated by the Buyer Parties without Cause (as such term is defined in the Employment Agreement), notwithstanding anything contained herein to Section 2.13(b)(i) abovethe contrary, then (x) a number of Earnout Shares equal the Seller shall be entitled to fifteen percent (15%) of all Earnout Shares comprising such the Revised Earnout Payment (the “Earnout Escrow Shares”) and (y) an as defined in Annex A). The amount in cash equal to fifteen percent (15%) of the Earnout Cash Amount comprising Payment for such Earnout Payment (the “Earnout Escrow Cash Amount”) fiscal year shall not be issued or paid to the Equityholders, Bonus Recipients or Convertible Noteholders and shall instead be delivered by Parent to the Escrow Agent, to be held by the Escrow Agent in the Escrow Account calculated in accordance with Annex A. All Earnout Payments to be made pursuant to this Section 1.7 will be paid in cash by wire transfer of immediately available funds as soon as practicable after the provisions of the Escrow Agreementdate on which an Earnout Payment is finally determined under this Section 1.7. Parent shall deliver guarantee the payment of the Earnout Payments from Buyer to Seller, pursuant to the terms of the Guaranty (defined below). All calculations required to be made by this Section 1.7, including Buyer’s computation of the amounts payable under this Section 1.7 (collectively, “Calculations”), will be made by the Buyer and delivered to the Seller within 30 days of the applicable fiscal year end. At the time of each such Earnout Payment not later than thirty (30) days after payment, Buyer shall provide a computation of the filing of Parent’s Annual Report on Form 10-K with amounts payable under this Section 1.7 and Seller will have the U.S. Securities right to communicate with, and Exchange Commission for review the fiscal year during which work papers, schedules, memoranda, and other documents Buyer prepared or reviewed in preparing the applicable Earnout Period ends. To the extent that Parent delivers any Earnout Payment to the Company Stockholders and the Surviving Corporation as provided herein, such payment shall be deemed to satisfy in full Parent’s obligations in respect thereofCalculations under this Section 1.7.

Earnout Payments. In the event that(a) Subject to Section 11.8, at any time following the Closing Date, the Equityholders, Bonus Recipients or Convertible Noteholders become Seller shall be entitled to receive any portion up to three earnout payments (each such payment an “Earnout Payment” and all such payments collectively, the “Earnout Payments”) based upon the actual Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to each of the Earnout Consideration pursuant to this Section 2.13 following twelve-month periods (each, an “Earnout PaymentPeriod”): (i) the twelve-month period commencing on the first calendar day of the first calendar month immediately after the Closing Date (the “First Earnout Period”), Parent (ii) the twelve-month period immediately following the First Earnout Period (the “Second Earnout Period”), and (iii) the twelve-month period immediately following the Second Earnout Period (the “Third Earnout Period”). The Earnout Payment for each Earnout Period, if any, shall be an amount equal to the product of (a) an amount equal to (i) deposit the amount of Adjusted GAAP Revenue recognized by the Company and issue to Parent’s transfer agent a number of shares of Parent Common Stock equal to the number of Earnout Shares issuable to the Founders its Subsidiaries with respect to such Earnout Payment as set forth in Period minus (ii) the Distribution Waterfall, issued in the names of such Founders in book-entry formapplicable Minimum Revenue Threshold multiplied by (b) fifty percent (50%); provided, however, notwithstanding if the foregoing calculation for any other provision Earnout Period results in an amount less than zero, the Earnout Payment for such Earnout Period shall be deemed to be zero. The aggregate amount of all such Earnout Payments shall be referred to in this Agreement as the “Earnout Amount.” Notwithstanding anything to the contrary herein, (a) in no event shall will the aggregate number of shares of Parent Common Stock to be issued pursuant to this Agreement Earnout Amount exceed 19.99% of the total outstanding shares of Parent Common Stock as of immediately prior to the Effective Time, (ii) deliver to the Company Stockholders (other than the holders of Dissenting Stock) and in accordance with Pro Rata Deferred Payment Shares, cash in an amount equal to the Earnout Cash Amount payable to such Company Stockholders with respect to such Earnout Payment as set forth $22,500,000 in the Distribution Waterfallaggregate, and (iiib) deliver any Earnout Payment that would otherwise result in the Earnout Amount being greater than $22,500,000 in the aggregate shall be reduced to an amount that results in a total Earnout Amount of $22,500,000 in the Surviving Corporation aggregate. The Earnout Payment for each Earnout Period, if any, shall be paid no later than 60 days after the end of such Earnout Period. Each Earnout Payment shall be accompanied by a report (each, an “Earnout Report”) showing, in reasonable detail, the calculation of the Earnout Payment for such Earnout Period (for the benefit avoidance of doubt, even if the Optionholdersamount of an Earnout Payment for a particular Earnout Period is zero, Bonus Recipients and Convertible Noteholders, and in accordance with the Pro Rata Deferred Payment Shares), cash in Buyer shall deliver an amount equal to the Earnout Cash Amount payable to such Optionholders, Bonus Recipients and Convertible Noteholders with respect to Report for such Earnout Payment as set forth in the Distribution Waterfall; provided, however, that if such Earnout Payment represents Earnout Consideration payable pursuant Period to Section 2.13(b)(i) above, then (x) a number of Earnout Shares equal to fifteen percent (15%) of all Earnout Shares comprising such Earnout Payment (the “Earnout Escrow Shares”) and (y) an amount in cash equal to fifteen percent (15%) of the Earnout Cash Amount comprising such Earnout Payment (the “Earnout Escrow Cash Amount”) shall not be issued or paid to the Equityholders, Bonus Recipients or Convertible Noteholders and shall instead be delivered by Parent to the Escrow Agent, to be held by the Escrow Agent in the Escrow Account in accordance with the provisions of the Escrow Agreement. Parent shall deliver each such Earnout Payment not later than thirty (30) days after the filing of Parent’s Annual Report on Form 10-K with the U.S. Securities and Exchange Commission for the fiscal year during which the applicable Earnout Period ends. To the extent that Parent delivers any Earnout Payment to the Company Stockholders and the Surviving Corporation as provided herein, such payment shall be deemed to satisfy in full Parent’s obligations in respect thereofSeller).

Earnout Payments. (a) After the Closing, subject to the terms and conditions set forth herein, the Company Securityholders shall have the contingent right to receive additional consideration from the Parent based on the performance of the Parent if the requirements as set forth in this Article II are achieved. In the event thatthat (i) EBITDA (measured at any applicable Measurement Date occurring within calendar year 2018 and using the Measurement Methodologies) exceeds One Hundred Forty-Four Million U.S. Dollars ($144,000,000) (the “2018 Target”), (ii) EBITDA (measured at any applicable Measurement Date occurring within calendar year 2019 and using the Measurement Methodologies ) exceeds One Hundred Fifty-Five Million U.S. Dollars ($155,000,000) (the “2019 Target”), or (iii) EBITDA (measured at any applicable Measurement Date occurring within calendar year 2020 using the Measurement Methodologies) exceeds One Hundred Sixty-Five Million U.S. Dollars ($165,000,000) (the “2020 Target” and together with the 2018 Target and 2019 Target, the “Earnout Targets” and each of calendar years 2018, 2019 and 2020 an “Earnout Year”), in each case, at any time following during the period beginning on and including the Closing Date and ending on and including December 31, 2020 (the “Earnout Period”), then for each Earnout Target that is achieved as of a given Measurement Date, the EquityholdersCompany Securityholders shall receive additional consideration (in accordance with their respective Pro Rata Shares) from the Parent (a “Regular Earnout Payment”) of (A) Three Million Three Hundred Thousand (3,300,000) Parent Common Shares (which shall be equitably adjusted for stock splits, Bonus Recipients or Convertible Noteholders become entitled to receive any portion of stock dividends, combinations, recapitalizations and the Earnout Consideration pursuant to this Section 2.13 like after the Closing) (each, an “Earnout Stock Payment”), Parent shall (i) deposit and issue to Parent’s transfer agent a number of shares of Parent Common Stock equal to the number of Earnout Shares issuable to the Founders with respect to such Earnout Payment as set forth in the Distribution Waterfall, issued in the names of such Founders in book-entry form; provided, however, notwithstanding any other provision of this Agreement in no event shall the aggregate number of shares of Parent Common Stock to be issued pursuant to this Agreement exceed 19.99% of the total outstanding shares of Parent Common Stock as of immediately prior to the Effective Time, (ii) deliver to the Company Stockholders (other than the holders of Dissenting Stock) and in accordance with Pro Rata Deferred Payment Shares, (B) cash in an amount equal to Thirty-Three Million U.S. Dollars ($33,000,000) (an “Earnout Cash Payment”). For the avoidance of doubt, the Company Securityholders shall have the right to receive no more than three Regular Earnout Payments during the Earnout Cash Amount payable to such Company Stockholders with respect to such Earnout Payment as set forth in the Distribution WaterfallPeriod, and (iii) deliver to the Surviving Corporation (for the benefit of the Optionholders, Bonus Recipients and Convertible Noteholders, and in accordance with the Pro Rata Deferred Payment Shares), cash in an amount equal to the Earnout Cash Amount payable to such Optionholders, Bonus Recipients and Convertible Noteholders with respect to such Earnout Payment as set forth in the Distribution Waterfall; provided, however, that if such Earnout Payment represents Earnout Consideration payable pursuant to Section 2.13(b)(i) above, then (x) a number of Earnout Shares equal to fifteen percent (15%) aggregate sum of all Earnout Shares comprising such Stock Payments and Earnout Payment Cash Payments payable hereunder (the “assuming all three Earnout Escrow Shares”) and (y) an amount in cash equal to fifteen percent (15%) of Targets are achieved during the Earnout Cash Amount comprising such Earnout Payment (the “Earnout Escrow Cash Amount”) shall not be issued or paid to the EquityholdersPeriod), Bonus Recipients or Convertible Noteholders and shall instead be delivered by Parent to the Escrow Agent, to be held by the Escrow Agent in the Escrow Account in accordance with the provisions of the Escrow Agreement. Parent shall deliver each such Earnout Payment not later than thirty (30) days after the filing of Parent’s Annual Report on Form 10-K with the U.S. Securities and Exchange Commission for the fiscal year during which the applicable Earnout Period ends. To the extent that Parent delivers any Earnout Payment to the Company Stockholders and the Surviving Corporation as provided herein, such payment shall be deemed to satisfy in full Parent’s obligations in respect thereofa maximum of 9,900,000 Parent Common Shares and $99,000,000, respectively.