Contingent Merger Consideration. 5 2.4 Exchange of Certificates and Payment of Cash................... 8
Contingent Merger Consideration. (a) For purposes of this Agreement, but subject to the provisions of subsections (i), (ii), and (iii) below, the "Contingent Merger Consideration" ------------------------------- shall mean an amount up to $1,641,600.
(i) $1,641,600 (the "Maximum Earn Out Amount") will be paid, ----------------------- subject to the provisions of subsection (ii) and (iii) below, if the Earnings before Interest and Taxes of the Surviving Group Companies (as defined below), for the one year period after February 28, 1998 (the "Group Actual Earn Out --------------------- EBIT") is at least equal to the sum of $25,020,000 and the amount, if any, of ---- the EBIT Increase (the "Maximum Earn Out Threshold"). Price Waterhouse LLP, -------------------------- CCC's independent accountant ("CCC's Accountant"), will determine the Group ---------------- Actual Earn Out EBIT and deliver prompt notice of such amount to the Shareholders (the "Earn Out EBIT Notice") with supporting documentation. The -------------------- Shareholders (through the Group Representative as defined in Section 13.14(a)) shall have the right to inspect, audit and make extracts from all of the records, files and books of account of CCC relating to the Group Actual Earn Out EBIT for purposes of verifying the amount of the consideration payable pursuant to Section 2.3, at reasonable times during business hours, upon advance notice to CCC. For purposes of this Section 2.3, "Earnings before Interest and Taxes of ------------------------------------- the Surviving Group Companies" is equal to net income computed in accordance ----------------------------- with GAAP consistently applied of the Group Companies reflected on the books and records of the Surviving Group Companies and the Holding Company (as defined in Section 7.21 below), which net income (A) shall not reflect (1) the amortization of goodwill and other intangibles recognized by CCC in connection with the acquisition of the Group Companies or any future acquisitions, (2) expenses (including corporate overhead) of CCC other than those expenses incurred for the benefit of the Surviving Group Companies that do not duplicate expenses incurred by the Surviving Group Companies nor exceed the amounts of similar expenses incurred in the most recently ended fiscal year by the Group Companies prior to the Closing, or (3) the tax that arises under Section 4978 of the Code, (B) shall reflect (1) depreciation and amortization of assets of the Surviving Group Companies ...
Contingent Merger Consideration. As soon as possible, and in any event within 120 days after December 31, 1999, Lithia shall cause its auditors to prepare a balance sheet and income statement for the Company as of December 31, 1999 and for the year then ended and shall calculate the Adjusted Net Worth, Net Adjusted Pretax Income and Contingent Merger Consideration on the basis thereof. Lithia shall deliver such financial statements and calculations to the Shareholders. The Shareholders' opportunity to object, the effect of failure to do so and the resolution of any dispute shall be determined in the manner provided in Section 2.5.1 above for determining the Initial Merger Consideration.
Contingent Merger Consideration. As additional consideration for the Merger and subject to the conditions set forth in this Section 1.9, Section 1.13 (Dissenting Shares) and Section 8.6 (Right of Off-Set), Parent shall make additional payments as set forth in this Section 1.9 (the “Contingent Merger Consideration”) to the Payment Agent for distribution to those Stockholders who are not otherwise Dissenting Stockholders an amount equal to (A) the product of the Net Product Revenues for the period beginning on July 5, 2004 and ending on December 31, 2005 (the “Contingent Period”) multiplied by four (4), less (B) Forty Million Dollars ($40,000,000); provided however, that the aggregate Merger Consideration shall not exceed Two Hundred Fifty Million Dollars ($250,000,000).
(a) Parent shall deliver quarterly to the Stockholders’ Representative, no later than forty-five (45) days following the last day of each fiscal quarter of Parent during the Contingent Period, a statement with reasonable detail reflecting Parent’s calculation of (i) Net Product Revenues for the preceding fiscal quarter, without adjustment for any Uncollected Invoices, (ii) the adjustment for Uncollected Invoices related to sales of the Product during the fiscal quarter preceding the fiscal quarter for which Net Product Revenues are being calculated, if such quarter is within the Contingent Period, and (iii) the Contingent Merger Consideration payable for such quarter, which shall be based on Net Product Revenues for the preceding fiscal quarter, less Uncollected Invoices related to sales of the Product during the fiscal quarter preceding the fiscal quarter for which Net Product Revenues are being calculated, if such quarter is within the Contingent Period; provided, however, that there shall be no deduction for Uncollected Invoices with respect to the first quarter of the Contingent Period. (the “Quarterly Contingent Calculation”). For the avoidance of doubt, any Uncollected Invoices for which a prior adjustment was made but subsequently collected will be added to Net Product Revenues for the quarter in which such previously Uncollected Invoices are collected. No later than July 15, 2006, Parent shall deliver to the Stockholders’ Representative a statement showing Parent’s final reconciliation of Net Product Revenues for the Contingent Period, including the adjustment for Uncollected Invoices that remain uncollected as of June 30, 2006 and that are related to sales of the Product made any time during the Contingent Period (...
Contingent Merger Consideration. As additional consideration for the Merger and subject to the conditions set forth in this Section 1.9, Section 1.11 (Dissenting Shares), Section 4.11(g) (Tax Withholding) and Section 8.6 (Right of Set-Off), Parent shall make the following additional payments (collectively, the “Contingent Merger Consideration” and, together with the Initial Merger Consideration, the “Merger Consideration”) to the Payment Agent for distribution to those Stockholders who are not otherwise Dissenting Stockholders:
(a) If the Company or Parent (i) receives IDE approval from the U.S. Food and Drug Administration (the “FDA”) to conduct a clinical trial of the Product, and (ii) commences an FDA-approved pivotal clinical trial with respect to the Product as demonstrated by the first successful placement of the Product in both ostia using flexible hysteroscopy (the “Clinical Trial”) (the “First Milestone”), Parent shall pay an additional Five Million Dollars ($5,000,000), less (i) the Legal Advance Funds, if any, advanced to the Company pursuant to Section 4.12, (ii) the amounts owed under the Bridge Loans on the First Milestone within fifteen (15) days of completing the First Milestone and (iii) the aggregate amount of the employee bonuses payable at the First Milestone, as set forth in Section 2.8(j) of the Disclosure Schedule;
(b) If the Company or Parent completes enrollment of and placement of the Product in the minimum number of patients in the Clinical Trial required for a PMA submission (the “Second Milestone”), Parent shall pay an additional Five Million Dollars ($5,000,000), less (i) the amounts owed under the Bridge Loans on the Second Milestone within fifteen (15) days of completing the Second Milestone and (ii) the aggregate amount of the employee bonuses payable at the Second Milestone, as set forth in Section 2.8(j) of the Disclosure Schedule;
(c) If the Company or Parent receives PMA approval, including but not limited to final labeling, from the FDA to market the Product for female sterilization (the “Third Milestone” and the date such approval is received, the “PMA-Approval Date”), Parent shall pay an additional Ten Million Dollars ($10,000,000) within fifteen (15) days of completing the Third Milestone; and
(d) After the Third Milestone is successfully completed, Parent will pay an amount equal to one times Net Sales of the Product for the twelve- (12-) month period (the “Final Contingent Payment” and, together with the First Milestone, the Second Milestone and ...
Contingent Merger Consideration. In addition to the Merger Consideration, if the Hospital JV is formed and becomes operational on or before May 15, 1997, the OSMC Stockholders shall be entitled to receive the Additional Merger Consideration. The Contingent Merger Consideration shall be payable in the same percentages of SCN Shares, Cash Consideration (plus Warrants, if applicable) and Debentures as the OSMC Stockholders shall have elected pursuant to Section 2(d)(v) above. The parties shall, at Closing, execute and deliver an escrow agreement (the "Escrow Agreement") pursuant to which Xxxx X. Good, Esq. shall be appointed as escrow agent (the "Escrow Agent"), and SCN shall deliver to the Escrow Agent a combination of SCN Shares, Cash Consideration (plus Warrants, if applicable) and/or Debentures equal to, in the aggregate, the Parties' best estimate, determined as of the Closing Date, of the Contingent Merger Consideration. For this purpose, the number of SCN Shares shall be determined based on the Average SCN Price. On the date which a definitive agreement for the Hospital JV (the "Escrow Release Date") is executed and delivered, the amount of Contingent Merger Consideration shall be determined by the parties based on the definitive agreement for the Hospital JV. On the Escrow Release Date, the Escrow Agent shall deliver to the OSMC Stockholders the escrowed consideration (with SCN Shares being valued at the price set forth in the second preceding sentence) up to, but not in excess of, the Contingent Merger Consideration, with any remaining escrowed consideration being returned to SCN, all pursuant to the Escrow Agreement.
Contingent Merger Consideration. 2 DOJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Contingent Merger Consideration. (a) Following the Closing and within ten (10) Business Days of Parent providing notice to the Representative of the achievement of the Contingent Merger Consideration Milestone, as further consideration for the Merger, Parent shall (a) deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, pursuant to the Exchange Agent Agreement, for the benefit of the Participating Equity Holders, for exchange in accordance with Article III, through the Exchange Agent, by wire transfer of immediately available funds to the account specified by the Exchange Agent, cash in an amount equal to the aggregate Contingent Merger Consideration then payable pursuant to Section 2.1, (b) pay, or cause to be paid, the Management Incentive Payment Amount then payable in respect of the achievement of such Contingent Merger Consideration Milestone, as allocated to each member of Company Management pursuant to the Continuing Chairman Agreement and the 2007 Management Incentive Plan, as applicable, by wire transfer of immediately available funds to the bank account as identified by such member of Company Management, (c) pay, or cause to be paid, an amount equal to the Series B Warrant Contingent Consideration by wire transfer of immediately available funds to the bank account as identified by the Series B Warrant Holder, and (d) deposit with the Escrow Agent the Contingent Escrow Fund Amount to be held by the Escrow Agent in accordance with the terms of the Escrow Agreement as security for the indemnification obligations contained in Section 12.1, subject, in each case, to achievement of the Contingent Merger Consideration Milestone in accordance with the following provisions. (b)(i) Parent shall have no payment obligation under this Section 4.6 in the event that [*], (ii) Parent shall pay [*], and (iii) Parent shall pay [*].
(c) In the event Parent does not pay all or part of the Contingent Merger Consideration under this Section 4.6 because [*].
Contingent Merger Consideration. In addition to the Closing Merger Consideration, Contingent Merger Consideration Amounts shall be earned and payable to the Participating Securityholders in accordance with the terms set forth in this Section 3.8.
Contingent Merger Consideration. In addition to the Closing Merger Consideration, and as additional Merger Consideration, the ETI Stockholders shall be entitled to receive an additional Two Million ($2,000,000) Dollars, payable in the form of additional shares of Oaktree Common Stock (the “Contingent Merger Consideration”); provided, however, that, subject to the provisions of Section 1.8(c) below, such Contingent Merger Consideration shall be payable only in the event that either :
(a) the “Culinary Group” (as that term is hereinafter defined) shall have earned combined or consolidated “Pre-Tax Income” (as hereinafter defined) of not less than $1,650,000 (the “2010 Target Income”) for the fiscal period that commenced January 1, 2010 and ends December 31, 2010 (the “2010 Fiscal Year”); or
(b) the Culinary Group shall have earned combined or consolidated Pre-Tax Income of not less than $1,900,000 (the “2011 Target Income”) for the fiscal year ending December 31, 2011 (the “2011 Fiscal Year”). The number of shares of Oaktree Common Stock representing the Contingent Merger Consideration shall be determined by dividing (A) $2,000,000, by (B) the VWAP of Oaktree Common Stock, as traded on the Exchange for the twenty (20) Trading Days immediately prior to the “Date of Determination” (as defined below) that the Culinary Group has achieved either the 2010 Target Income or the 2011 Target Income, as the case may be.
(c) In the event that the Culinary Group fails to reach the 2010 Target Income or the 2011 Target Income, the ETI Stockholders shall remain eligible for a pro-rata payment of the Contingent Merger Consideration provided that the cumulative Pre-Tax Income achieved in 2010 and 2011 is equal to at least 75% of the cumulative 2010 Target Income and 2011 Target Income. For the avoidance of doubt, if, for example the Culinary Group only achieves 75% of the cumulative 2010 Target Income and 2011 Target Income, the ETI Stockholders shall receive 75% of the Contingent Merger Consideration; if for example the Culinary Group achieves 89% of the 2010 Target Income and 2011 Target Income, the ETI Stockholders shall receive 89% of the Contingent Merger Consideration. In the event that the cumulative Pre-Tax Income achieved in the 2010 Fiscal Year and the 2011 Fiscal Year is less than 75% of the cumulative 2010 Target Income and 2011 Target Income, then the Contingent Merger Consideration shall not be issued.
