Calculation of Earnout Amount Sample Clauses

Calculation of Earnout Amount. The determination of the Earnout Amounts owed to the Sellers at the end of each Earnout Period shall be made as follows: (a) Buyer shall prepare a consolidated statement of income of the Acquired Companies as of the the last day of each Earnout Period in accordance with Company GAAP (the "Earnout Income Statement"). Buyer shall then determine the Earnout Amount due, if any, based upon the Earnout Income Statement and applicable Target Levels for the Earnout Period detailed therein. Buyer shall deliver the Earnout Income Statement and its determination of the applicable Target Levels and the Earnout Amount due, if any, to the Sellers' Representatives within ninety (90) days following the end of each Earnout Period. (b) If within thirty (30) days following delivery of the Earnout Income Statement and the determinations with respect to whether the applicable Target Level has been met, the Sellers' Representatives have not given Buyer written notice of its objection as to the calculations of the Earnout Income Statement, the applicable Target Levels and the Earnout Amount, if any (the "Earnout Dispute Notice"), then the determination of the Earnout Income Statement, the applicable Target Levels and the Earnout Amount, if any, as calculated by Buyer shall be binding and conclusive on the parties and be used in computing the Earnout Amount due, if any. Sellers' Representatives may waive this thirty (30) day period by providing written notice to Buyer of their acceptance of Buyer's determination of the Earnout Income Statement, applicable Target Levels and the Earnout Amount, if any. (c) If the Sellers' Representatives deliver to Buyer the Earnout Dispute Notice (which notice shall state the basis of Sellers' Representatives objection) within such thirty (30) day period, Buyer and Sellers' Representatives shall use commercially reasonable efforts for a period of ten (10) days after Buyer's receipt of the Earnout Dispute Notice (or such longer period as Buyer and Sellers' Representatives shall mutually agree upon) to resolve any disputes raised by Sellers' Representatives with respect to the calculation of the Earnout Amount and the applicable Target Level, as determined pursuant to the preparation of the Earnout Income Statement, and Sellers' Representatives and Buyer shall provide information to the other party (as reasonably requested) related to the items of disagreement set forth in the Earnout Dispute Notice. Sellers' Representatives and their agents shall h...
Sample 1
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Calculation of Earnout Amount. Except as otherwise provided in Section 1.7(d), the Earnout Amount shall be equal to (a) the product of (i) EBITDA generated by the Business during the Earnout Measurement Period, (ii) multiplied by ten (10), (iii) multiplied by fifteen percent (15%) minus (b) the Inventory Reserve Shortfall Amount, but in no event less than $0.
Sample 1Sample 2
Calculation of Earnout Amount. Subject to the adjustments set forth in this Agreement, and the other terms and conditions herein, and calculated in accordance with the Earnout Amount Calculation Methodology and Illustration set forth on Schedule 2.8(b), Purchaser and its Affiliates shall make earnout payments (each an “Earnout Amount”) to Sellers, if any, as set forth below. For purposes of the calculation of each Earnout Amount in this Section 2.8(b), the Closing Date shall mean the first of the month closest to the actual Closing Date (e.g., if the Transaction closes on October 10, 2017, then the Closing Date used in Section 2.8(b) shall be October 1, 2017). (i) If, on the first anniversary of the Closing Date, the ratio of (A) Actual Gross Profit for the period beginning on the Closing Date and ending the day before the first anniversary of the Closing Date over (B) $7.637 million (the “Year 1 Earnout Ratio”) is equal to a number that is 0.75 or greater, Purchaser shall pay Seller Parent an amount equal to (x) the Year 1 Earnout Ratio minus 0.75, multiplied by (y) $8 million (the “Year 1 Earnout Amount”); provided, that amounts payable pursuant to this Section 2.8(b)(i) will be capped at a Year 1 Earnout Amount of $2.0 million. (ii) If, on the second anniversary of the Closing Date, the ratio of (A) Actual Gross Profit for the period beginning on the first anniversary of the Closing Date and ending on the day before the second anniversary of the Closing Date over (B) $7.828 million (the “Year 2 Earnout Ratio”) is equal to a number that is 0.75 or greater, Purchaser shall pay Seller Parent an amount equal to (x) the Year 2 Earnout Ratio minus 0.75, multiplied by (y) $8 million (the “Year 2 Earnout Amount”); provided, that amounts payable pursuant to this Section 2.8(b)(ii) will be capped at a Year 2 Earnout Amount of $2.0 million. (iii) If, on the third anniversary of the Closing Date, the ratio of (A) the three-year cumulative Actual Gross Profit for the period beginning on the Closing Date and ending on the day before the third anniversary of the Closing Date over (B) $23.489 million (the “Three-Year Cumulative Earnout Ratio”) is equal to a number that is 0.75 or greater, Purchaser shall pay Seller Parent an amount (the “Cumulative Earnout Amount”) equal to (x) the Three-Year Cumulative Earnout Ratio, minus 0.75, multiplied by (y) $24 million, (z) minus the sum of the Year 1 Earnout Amount and the Year 2 Earnout Amount. If the amount of (A) the Year 1 Earnout Amount plus (B) the Yea...
Sample 1Sample 2
Calculation of Earnout Amount. As of the Closing Date each of the “First Earnout Amount” and “Second Earnout Amount” (each an “Earnout Amount”) shall be equal to $0, subject to increase in accordance with this Section 1.6, and subject to acceleration in accordance with Section 1.4(d). If, at the time an Earnout Amount is to be paid, the Xxxxxx Xxxxxx Employment Agreement has not been terminated by the Company “For Cause” (as that term is defined in the Xxxxxx Xxxxxx Employment Agreement), then the applicable Earnout Amount shall be calculated as follows:
Sample 1
Calculation of Earnout Amount. (a) In the event that the Actual Gross Profit Amount is less than or equal to the Minimum Gross Profit Target Amount, the Earnout Amount shall equal ZERO DOLLARS ($0.00). (b) In the event that the Actual Gross Profit exceeds the Minimum Gross Profit Target Amount but is equal to or less than the Base Gross Profit Target Amount, the Earnout Amount shall be the product of (i) the amount by which (1) the Actual Gross Profit exceeds (2) the Minimum Gross Profit Target Amount multiplied by (ii) the Low Multiplier. (c) In the event that the Actual Gross Profit exceeds the Base Gross Profit Target Amount but is less than the Maximum Gross Profit Target Amount, the Earnout Amount shall be the sum of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) and (ii) the product of (A) the amount by which (1) the Actual Gross Profit exceeds (2) the Base Gross Profit Target Amount multiplied by (B) the High Multiplier. (d) In the event that the Actual Gross Profit exceeds the Maximum Gross Profit Target Amount, the Earnout Amount shall be NINE HUNDRED THOUSAND DOLLARS ($900,000).
Sample 1
Calculation of Earnout Amount. For purposes of calculating the aggregate number of Contingent Shares to be issued to the Sellers in the event the Attaining Entity attains any of the milestones set forth above, the price of such Contingent Shares shall be equal to the dollar amounts set forth above next to the applicable milestone divided by the Average Parent Common Stock Price ending on the date such applicable milestone is reached; except that milestones 4 and 5 above, respectively, shall be priced based on the Average Parent Common Stock Price ending on the date milestones 3 and 4 above, respectively, are reached. The aggregate number of Contingent Shares shall, in each case, be subject to equitable adjustment in the event of a stock split, stock dividend, reverse stock split or similar event affecting the Parent Common Shares between the date of determination of such Average Parent Common Stock Price and the date of such payment. Notwithstanding anything to the contrary in this Section 1.10(a), unless a California Permit is obtained prior to the Closing Date and the Contingent Shares are exempt from registration under the Securities Act by reason of Section 3(a)(10) of such act, no more than seventy-five percent (75%) of the value of the Contingent Consideration paid for any of the milestones set forth above shall be paid using Contingent Shares (the “75% Limit”).
Sample 1
Calculation of Earnout Amount. The “Earnout Amount” shall be an amount equal to forty percent (40%) of the Adjusted Operating Profit of the Shape/Fitness Business for the period from the Combination through June 30, 2018 (the “Earnout Measurement Period”) and shall be calculated, determined and paid as described on Schedule 2.5(b).
Sample 1
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Calculation of Earnout Amount. (a) The EBITDA Earnout Amount shall be calculated as follows: (i) If the Company Group generates EBITDA during the Earnout Measurement Period less than or equal to $5,999,999, then the EBITDA Earnout Amount will equal zero dollars ($0). (ii) If the Company Group generates EBITDA during the Earnout Measurement Period greater than $5,999,999, then the EBITDA Earnout Amount will be an amount equal to (i) (A) EBITDA of the Company Group generated during the Earnout Measurement Period less (B) $5,000,000, multiplied by (ii) five and three-eighths (5.375). By way of example, and for illustrative purposes only, if the Company Group generates EBITDA during the Earnout Measurement Period equal to $7,000,000, then the EBITDA Earnout Amount will be equal to $10,750,000. (iii) In no event will the aggregate EBITDA Earnout Amount exceed $21,500,000. (b) The Off-Shore Earnout Amount shall be calculated as follows: (i) If the Off-Shore Earnout Conditions are not satisfied, then the Off-Shore Earnout Amount will equal zero dollars ($0). (ii) If the Off-Shore Earnout Conditions are satisfied and the number of Productive Agents is at least 60 but not more than 250 (without Buyer’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed), then the Off-Shore Earnout Amount will be pro-rated on a dollar-for-dollar basis using straight-line interpolation between $2,500,000 and $10,000,000 in accordance with the following chart: 60 $ 2,500,000 120 $ 5,000,000 180 $ 7,500,000 240+ $ 10,000,000 By way of example, and for illustrative purposes only, if the Company Group has 150 Productive Agents as of the last day of the Earnout Measurement Period, then the Off-Shore Earnout Amount will be equal to $6,250,000. (iii) In no event will the aggregate Off-Shore Earnout Amount exceed $10,000,000. (iv) On or prior to April 30, 2025, Buyer shall prepare and deliver to Seller a statement setting forth the calculation of the Off-Shore Earnout Amount, together with reasonably detailed supporting calculations used in preparing such amounts. In the event that Seller has any objections to the calculation of the Off-Shore Earnout Amount (or the related determination of the satisfaction of the Off-Shore Earnout Conditions and calculations associated therewith), the dispute mechanics in Section 2.8(e) shall apply, mutatis mutandis. Buyer shall pay the Off-Shore Earnout Amount (if any) set forth in such report to the Company Successor and the Seller, as applicable...
Sample 1

Related to Calculation of Earnout Amount

  • Earnout Payment (i) As promptly as practicable after the end of the Earnout Period, but in no event later than 60 days following December 31, 2005, Parent shall provide the Stockholders’ Agent with a report, setting forth the Net Revenues for the 12-month period ended December 31, 2005 (the “Earnout Report”). If an Earnout Dispute Notice is not delivered pursuant to Section 2.4(c)(iii) below, then in no event later than 105 days following December 31, 2005, Parent shall pay or cause to be paid the Earnout Payment Amount in accordance with the terms of this Agreement, subject to the right of offset provisions of Sections 2.4(a), (b) and (d). (ii) Parent shall keep full, clear and accurate books and records with respect to the Business. The books and records shall be maintained in such a manner that Net Revenue shall be readily verifiable. All books and records with respect to the Business shall be available for inspection by the Stockholders’ Agent or any attorney or accountant engaged by the Stockholders’ Agent to act on behalf of the Holders, in all cases upon reasonable prior notice and during normal business hours. The information contained in the books and records of Parent with respect to the Business shall remain confidential. Notwithstanding the foregoing, upon written request of the Stockholders’ Agent, Parent shall provide the Stockholders’ Agent with a report reflecting the estimate of the Net Revenue to date (which estimate is subject to change in the preparation of the Earnout Report) as promptly as practicable thereafter; provided that the Stockholders’ Agent may only make such a request once every six months commencing on July 1, 2005. If the Stockholders’ Agent does not deliver to Parent an Earnout Dispute Notice (as defined below) as set forth in Section 2.4(c)(iii) below, then the Earnout Report for the Earnout Period shall be deemed final and binding and neither the Stockholders’ Agent nor the Holders shall have any further right to contest the report, the computation of Net Revenue or payment of the Earnout Payment Amount. (iii) In the event that the Stockholders’ Agent shall dispute the information set forth by Parent in the Earnout Report or, if based on the Stockholders’ Agent’s review of the books and records of the Business in accordance with subsection (c)(ii) above, omitted from the Earnout Report, as the case may be, then, within 60 calendar days following the date of the delivery by Parent of such report, the Stockholders’ Agent shall provide written notice to Parent (the “Earnout Dispute Notice”) specifying the amount disputed and the basis for the dispute, together with supporting documentation reflecting the analysis of and justification for any recomputation made. Parent and the Stockholders’ Agent shall make good faith efforts to resolve the dispute through negotiations for a period of 30 calendar days following the receipt of the written notice defining and describing the nature of the dispute. In the event that the parties are unable to finally resolve the dispute within such 30 calendar-day period, the parties to the dispute may elect by mutual agreement to extend the period of negotiation and may elect by mutual agreement to engage a mediator to assist in such negotiation. To the extent that any matter remains unresolved following negotiations (as determined by notice by any party to the other parties), the Stockholders’ Agent and Parent shall jointly select an independent accountant of recognized national standing to resolve any remaining disagreements, which independent accountant shall not have provided services to the Stockholders’ Agent, the Company or Parent or its affiliates during the five-year period preceding the date of its selection (the “Independent Accountant”). The Stockholders’ Agent and Parent shall use their respective commercially reasonable efforts to cause such Independent Accountant to make its determination within 60 calendar days of accepting its selection. Within 10 business days after the date of determination of such Independent Accountant, Parent shall pay or cause to be paid to the Holders the Earnout Payment Amount, if any, in the manner set forth herein, subject to the right of offset provisions of Sections 2.4(a), (b) and (d). The decision of the Independent Accountant shall be a final, binding, and conclusive resolution of the parties’ dispute, shall be non-appealable, and shall not be subject to further review. Irrespective of the Independent Accountant’s decision, the costs and expenses of the Independent Accountant shall be split equally between the parties. In the event that the Stockholders’ Agent does not pay the full amount of one-half of the Independent Accountant’s costs and expenses, Parent shall be entitled to deduct the difference between one-half of the costs and expenses of the Independent Accountant and the amount actually paid by the Stockholders’ Agent to the Independent Accountant from the Earnout Payment Amount. Notwithstanding the foregoing, in any case, the parties shall be responsible for the payment of their respective costs and expenses, including any attorneys’ and accountants’ fees (other than any accountants’ fees payable to the Independent Accountant, which shall be split equally between the parties) incurred in connection with the dispute. Notwithstanding the foregoing, in any case, the parties shall be responsible for the payment of their respective costs and expenses, including any attorneys’ and accountants’ fees (other than any accountants’ fees payable to the Independent Accountant, which shall be split equally between the parties) incurred in connection with the dispute. (iv) The Holders will be deemed to, as part of their approval and adoption of the Merger Agreement and the transactions contemplated therein and herein, and the Stockholders’ Agent hereby, generally, irrevocably, unconditionally and completely agree that (1) the Company and Parent (as the controlling stockholder of the Company as of the Effective Time of the Merger) and each of their respective Affiliates shall be entitled to operate the Business after the Effective Time as they determine in their sole and absolute discretion, and shall have no obligation to operate the Business in any manner that would maximize, maintain or protect the value of the Common Stock CVRs and the Preferred Stock CVRs, and as a result of such operation of the Business, there may be a diminution in or elimination of the value of the CVRs, (2) the Common Stock CVRs and the Preferred Stock CVRs represent contractual obligations of Parent, and none of Parent, the Company or any of their respective Affiliates owes any fiduciary duty of any type (including, without limitation, any duty of loyalty or care) to any Holder of Common Stock CVRs and/or Preferred Stock CVRs, and (3) each of the Holders and the Stockholders’ Agent shall be prohibited from asserting any dispute, right, claim, action, cause of action, controversy or remedy of any kind and nature against any of the Company, Parent or any of their Affiliates resulting from the operation of the Business after the Effective Time or resulting from any allegation of breach of fiduciary duty of any nature, other than claims for fraud or intentional misconduct (and other than the right of the Stockholders’ Agent to dispute the Closing Balance Sheet Payment under Section 2.4(b)(iii) and/or the Earnout Report under Section 2.4(c)(iii) above). Upon either (A) the occurrence of an allegation by the Stockholders’ Agent of any claim which may arise for fraud or intentional misconduct under this subsection (iv) or (B) the receipt by the Stockholders’ Agent of written notice made in accordance with Section 1.3 by any Holder to the Stockholders’ Agent of the occurrence of any claim which such Holder has a good faith belief has arisen for fraud or intentional misconduct under this subsection (iv) (in each case, a “Claim”), the Stockholders’ Agent shall provide notice of such Claim to Parent, stating, to the best of his or her understanding, the circumstances giving rise to the Claim, specifying the amount of the Claim and making a request for any payment then believed due (the “Notice”). Upon receipt of any such Notice by Parent, within the next 45 days thereafter, the parties shall use their reasonable best efforts to cooperate and arrive at a mutually acceptable resolution of such dispute. If a mutually acceptable resolution cannot be reached between the parties within such 45-day period, the Stockholders’ Agent may submit the dispute for resolution by a panel of three arbitrators selected from the panels of arbitrators of the American Arbitration Association in Santa Xxxxx County, California; provided, however, that (i) one arbitrator shall be selected by the Stockholders’ Agent, the second arbitrator shall be selected by Parent and the third arbitrator shall be selected by the two previously selected arbitrators and (ii) in all respects, such panel shall be governed by the American Arbitration Association’s then existing Commercial Arbitration Rules. If it is finally determined that all or a portion of such Claim amount is owed to the Holders, Parent shall, within 10 days of such determination, pay the Holders such amount owed, together with interest from the date that the Stockholders’ Agent initially requested such payment until the date of actual payment, at an annual rate equal to the prime interest rate then generally in effect on the date of payment as set forth in The Wall Street Journal. The arbitration panel’s decision shall be final and binding upon the parties, and may be entered and enforced in any court of competent jurisdiction by any party. The parties shall be responsible for their respective fees and costs (including any attorneys’ or accountants’ fees) incurred in connection with the arbitration. EACH HOLDER AND THE STOCKHOLDERS’ AGENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE FOR FRAUD OR INTENTIONAL MISCONDUCT UNDER THE PRECEDING SENTENCE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO FRAUD OR INTENTIONAL MISCONDUCT UNDER THE PRECEDING SENTENCE. EACH HOLDER AND THE STOCKHOLDERS’ AGENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, AND (C) IT MAKES SUCH WAIVER VOLUNTARILY. (v) Notwithstanding anything to the contrary set forth in this Section 2.4(c), in the event of a Change of Control (as defined below) of Parent before December 31, 2005, the Aggregate Earnout Payment Amount payable pursuant to this Section 2.4(c) shall be at least $14,000,000 regardless of the actual Net Revenue recognized during the Earnout Period, subject, however, to the offset provisions of Section 2.4(a), (b) and (d). In event of a Change of Control of Parent as set forth herein, Parent shall make proper provisions so that the continuing or surviving corporation or entity shall assume the obligation to pay the Aggregate Earnout Payment Amount as set forth herein. For purposes of this Section 2.4(c)(v), a “Change of Control” shall mean (1) the consummation of any transaction, including without limitation, any merger or consolidation, pursuant to which any of the voting stock of Parent is converted into or exchanged for cash, securities or other property, other than any transaction where the voting stock of Parent outstanding immediately prior to such transaction is converted into or exchanged for voting stock of the surviving or transferee entity constituting more than 50% of such voting stock of such surviving or transferee entity (immediately after giving effect to such issuance) and other than an acquisition of Parent in which the management of Parent participates in ten percent or more of the fully-diluted equity of the acquiror; or (2) a sale of all or substantially all of Parent’s assets.

  • Minimum Consolidated EBITDA Parent will not permit Consolidated EBITDA for any Test Period ended on the last day of a fiscal quarter described below to be less than the respective amount set forth opposite such period below: Fiscal Quarter Ended Closest to Amount --------------- -------- June 30, 1999 $32,000,000 September 30, 1999 $35,500,000 December 31, 1999 $37,000,000 March 31, 2000 $38,000,000 June 30, 2000 $39,000,000 September 30, 2000 $41,000,000 December 31, 2000 $42,000,000 March 31, 2001 $43,000,000 June 30, 2001 $43,500,000 September 30, 2001 $44,000,000 December 31, 2001 $44,500,000 March 31, 2002 $45,000,000 June 30, 2002 $45,500,000 September 30, 2002 $46,000,000 December 31, 2002 $46,500,000 March 31, 2003 $47,000,000 June 30, 2003 $47,500,000 September 30, 2003 $48,000,000 December 31, 2003 $48,500,000 March 31, 2004 $49,000,000 June 30, 2004 $49,500,000 September 30, 2004 $50,000,000 December 31, 2004 $50,500,000 March 31, 2005 $51,000,000

  • Minimum Adjusted EBITDA Borrower shall maintain a minimum trailing six-month Adjusted EBITDA minus dividend distributions (other than tax distributions), as of such test date, of at least the greater of (a) $75,000,000 and (b) an amount equal to 75% of the trailing six-month Adjusted EBITDA minus dividend distributions (other than tax distributions), for the immediately preceding six-month period, tested semi-annually, commencing September 30, 2024, and continuing on each subsequent March 31 and September 30.

  • Adjusted EBITDA The 2019 adjusted EBITDA for the Affiliated Club Sellers shall total an aggregate of not less than $10,700,000.

  • Earn-Out Payment (a) The Earn-Out Amount, if any, due to the Company shall be paid by Purchaser (or one of its Affiliates) by wire transfer of same-day funds to an account designated by the Company no later than two (2) months following the day of final determination of such Earn-Out Amount in accordance with Section 2.03(b) and Section 2.03(c) below. (b) Within ninety (90) calendar days after the end of each Earn-Out Period, Purchaser shall prepare and deliver to the Company a reasonably detailed statement (each, an “Earn-Out Statement”) setting forth a calculation of the Earn-Out Amount for such period together with reasonable supporting information. The Company may dispute the calculation of such Earn-Out Amount by providing written notice (an “Earn-Out Dispute Notice”) to Purchaser within thirty (30) calendar days of Purchaser’s delivery of the Earn-Out Statement to the Company. If the Company does not provide an Earn-Out Dispute Notice, such Earn-Out Statement shall be deemed final upon the end of such thirty (30) calendar days of Purchaser’s delivery of the Earn-Out Statement to the Company. An Earn-Out Dispute Notice shall identify each disputed item, specify the amount of such dispute and set forth in reasonable detail the basis for such dispute. Purchaser shall, and shall cause its Affiliates and Representatives to, provide the Company and its Representatives with reasonable access, information and assistance as may be reasonably requested by the Company in connection with its review of an Earn-Out Statement. In the event of any such disputes, Purchaser and the Company shall attempt, in good faith, to reconcile their differences (including providing information that is reasonably requested to the other party), and any resolution by them as to any disputed items shall be final, binding and conclusive on the Parties and shall be evidenced by a writing signed by Purchaser and the Company reflecting such resolution. If Purchaser and the Company are able to reach a resolution, such Earn-Out Statement shall be deemed final. If Purchaser and the Company are unable to reach such resolution within thirty (30) calendar days after the Company’s delivery of an Earn-Out Dispute Notice to Purchaser, then Purchaser and the Company shall promptly submit any remaining disputed items for final binding resolution to the Designated Accounting Firm. If any remaining disputed items are submitted to the Designated Accounting Firm for resolution, (i) each Party will furnish to the Designated Accounting Firm such workpapers and other documents and information relating to the remaining disputed items as the Designated Accounting Firm may request and are available to such Party, and each Party will be afforded the opportunity to present to the Designated Accounting Firm any material relating to the disputed items and to discuss the resolution of the disputed items with the Designated Accounting Firm; (ii) each Party will use its Commercially Reasonable Efforts to cooperate with the resolution process so that the disputed items can be resolved within forty-five (45) calendar days of submission of the disputed items to the Designated Accounting Firm; (iii) the determination by the Designated Accounting Firm, as set forth in a written notice to Purchaser and the Company, shall be final, binding and conclusive on the Parties; and (iv) the fees and expenses of the Designated Accounting Firm shall be borne by the Company and Purchaser in inverse proportion as they may prevail on the matters resolved by the Designated Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Designated Accounting Firm at the time the determination is rendered on the merits of the matters submitted to the Designated Accounting Firm, and all other costs and expenses shall be paid by the respective Party incurring such expense. Nothing herein shall be construed to authorize or permit the Designated Accounting Firm to resolve any item in dispute by making an adjustment to the Earn-Out Statement that is outside of the range for such item defined by the Earn-Out Statement and an Earn-Out Dispute Notice. In calculating the Earn-Out Amount, the Designated Accounting Firm shall be limited to addressing only those particular disputes referred to in an Earn-Out Dispute Notice. (c) For the avoidance of doubt, an Earn-Out Statement shall be deemed to be final, binding and conclusive on Purchaser and the Company upon the earliest of (i) the failure of the Company to deliver to Purchaser an Earn-Out Dispute Notice within thirty (30) calendar days of Purchaser’s delivery of such Earn-Out Statement to the Company; (ii) the resolution of all disputes by Purchaser and the Company, documented in a writing executed by the Parties; and (iii) the resolution of all disputes by the Designated Accounting Firm in accordance with Section 2.03(b). (d) The Parties understand and agree that (i) any sale event (including stock purchase or all of substantially all of the respective stock, asset purchase or all of substantially all of the respective assets, merger, combination, exclusive license having the effect of a sale or other change of control, whether direct or indirect, whether by operation of law or otherwise) involving Purchaser or its Affiliates after the Closing shall (A) not relieve Purchaser of its obligations under this Section 2.03, and (B) require, as a condition precedent to such sale event, that the acquiror or surviving corporation, as the case may be, assume (whether expressly or by operation of law) this Agreement as part of the sale event and be liable for the payment of all amounts under this Section 2.03, and (ii) except as provided in Section 2.07 with respect to any applicable withholding Tax or as provided in Article VIII with respect to indemnification obligations of the Company and Parent, that the Earn-Out Amount payable hereunder shall be made without any deduction, abatement, set-off or counterclaim whatsoever. (e) During an Earn-Out Period, Purchaser hereby covenants and agrees to, and to cause its Affiliates not to, act in bad faith with respect to attaining any Revenue for the purpose of reducing the Earn-Out Amount.

  • Payments from the Gross Settlement Amount Within 14 days after Defendant funds the Gross Settlement Amount, the Administrator will mail checks for all Individual Class Payments, all Individual PAGA Payments, the LWDA PAGA Payment, the Administration Expenses Payment, the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment, and the Class Representative Service Payment. Disbursement of the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment and the Class Representative Service Payment shall not precede disbursement of Individual Class Payments and Individual PAGA Payments. 4.4.1. The Administrator will issue checks for the Individual Class Payments and/or Individual PAGA Payments and send them to the Class Members via First Class U.S. Mail, postage prepaid. The face of each check shall prominently state the date (not less than 180 days after the date of mailing) when the check will be voided. The Administrator will cancel all checks not cashed by the void date. The Administrator will send checks for Individual Settlement Payments to all Participating Class Members (including those for whom Class Notice was returned undelivered). The Administrator will send checks for Individual PAGA Payments to all Aggrieved Employees including Non-Participating Class Members who qualify as Aggrieved Employees (including those for whom Class Notice was returned undelivered). The Administrator may send Participating Class Members a single check combining the Individual Class Payment and the Individual PAGA Payment. Before mailing any checks, the Settlement Administrator must update the recipients’ mailing addresses using the National Change of Address Database. 4.4.2. The Administrator must conduct a Class Member Address Search for all other Class Members whose checks are retuned undelivered without USPS forwarding address. Within 7 days of receiving a returned check the Administrator must re-mail checks to the USPS forwarding address provided or to an address ascertained through the Class Member Address Search. The Administrator need not take further steps to deliver checks to Class Members whose re-mailed checks are returned as undelivered. The Administrator shall promptly send a replacement check to any Class Member whose original check was lost or misplaced, requested by the Class Member prior to the void date. 4.4.3. For any Class Member whose Individual Class Payment check or Individual PAGA Payment check is uncashed and cancelled after the void date, the Administrator shall transmit the funds represented by such checks to the California Controller’s Unclaimed Property Fund in the name of the Class Member thereby leaving no “unpaid residue” subject to the requirements of California Code of Civil Procedure Section 384, subd. (b). 4.4.4. The payment of Individual Class Payments and Individual PAGA Payments shall not obligate Defendant to confer any additional benefits or make any additional payments to Class Members (such as 401(k) contributions or bonuses) beyond those specified in this Agreement.

  • Interest Expense Coverage Ratio The Borrower will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in each case for any period of four consecutive fiscal quarters ending after the Effective Date, to be less than 4.0 to 1.0.

  • Earnout Payments Subject to the terms and conditions set forth in this Agreement, including this Section 1.04 and Article VII, Buyer shall make additional payments to the Management Shareholders (the “Earnout Payments”), as follows and such Earnout Payments shall form part of the consideration for the Shares and transactions contemplated hereby: (a) The amount of the Earnout Payments shall be determined based on the Earnings Before Taxes of the Company on a consolidated basis and calculated in accordance with Schedule 1.04(a) (“Adjusted EBT”) for each of the calendar years ended December 31, 2007, December 31, 2008 and December 31, 2009 (each a “Measurement Period”). The aggregate Earnout Payment paid by Buyer for each Measurement Period shall be equal to the difference between (i) the product of (A) 3.6 times Adjusted EBT during the applicable Measurement Period, multiplied by (B) 0.95, and (ii) the sum of (X) the aggregate Purchase Price (including prior Earnout Payments) paid to all Sellers as of the date of such calculation and (Y) the aggregate amount that the Buyer is entitled to for indemnification claims under Article VII and for any working capital deficiency under Section 1.06. Prior to payment of any Earnout Payment to the Management Shareholders, any fee due to Xxxxxxxx Inc. as a result of the Earnout Payment shall be paid by Buyer and the remaining amount of the Earnout Payment after deduction of any such fee shall be paid to the Management Shareholders. Each Earnout Payment shall be divided among the Management Shareholders in accordance with the allocation set forth on Schedule 1.04. Notwithstanding the foregoing, the total Purchase Price paid to Sellers pursuant to this Agreement shall not exceed £120,000,000 and no Earnout Payments shall be paid to the Management Shareholders to the extent such threshold is met. (b) The calculation and payment of an Earnout Payment will be made within thirty (30) days following completion of the Company’s audited financial statements for the applicable Measurement Period and shall be paid, subject to any adjustments as set forth herein, in Section 1.06 or Article VII, by delivery of a Promissory Note for the amount thereof to the Management Representative, on behalf of the Management Shareholders.

  • Payment and Year-End Adjustment Amounts accrued pursuant to this Agreement shall be payable to the Adviser as of the last day of each month. If necessary, on or before the last day of the first month of each fiscal year, an adjustment payment shall be made by the appropriate party in order that the actual Fund Operating Expenses of a Fund for the prior fiscal year (including any reimbursement payments hereunder with respect to such fiscal year) do not exceed the Maximum Annual Operating Expense Limit.

  • Payment Amount Payment for the Services shall be as follows: (choose one) ☐ - $______________________ for the Services (“Payment”). ☐ - At an hourly rate of $____ per hour (“Payment”). ☐ - Other. ______________________________________________ (“Payment”) If the Subcontractor asserts a claim which involves, in whole or in part, acts or omissions which are the responsibility of the Client or another person for whom a claim may be submitted, including but not limited to, claims for failure to pay, an extension of time, impacts, delay damages, or extra work, the Contractor shall present the Subcontractor's claim to the Client or other responsible party provided the Subcontractor presents to Contractor competent supporting evidence and in sufficient time for the Contractor to do so. The Subcontractor shall cooperate fully with the Contractor in any and all steps the Contractor takes in connection with prosecuting such a claim and shall hold harmless and reimburse the Contractor for all expenses, including legal expenses, incurred by the Contractor which arise out of the Contractor's submission of the Subcontractor's claims to the Client or other responsible party(ies). The Subcontractor shall be bound by any adjudication or award in any action or proceeding resolving such a claim.

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