Determination of Earn-Out Payment Sample Clauses

Determination of Earn-Out Payment. Acquiror shall prepare and deliver (or cause to be prepared and delivered) to the Seller Representative, not later than sixty (60) days following the end of the Earn-Out Period, a statement setting forth Acquiror’s good faith determination as to whether Earn-Out Net Sales during the Earn-Out Period are equal to or greater than the Earn-Out Threshold, and the amount of the Earn-Out Payment payable hereunder, including if the amount of such payment is zero dollars ($0), together with all supporting calculations and reasonable detail related thereto (the “Earn-Out Statement”). The Seller Representative may deliver a Purchase Price Dispute Notice, including with respect to the Earn-Out Payment set forth therein, to Acquiror within thirty (30) days of receipt of the Earn-Out Statement thereof in accordance with Section 2.4(b), and the dispute resolutions provided in Section 2.4(b) shall apply until the amount of the Earn-Out Payment is finally determined as provided therein. The Earn-Out Payment shall be made by Acquiror to the Company, for payment to the Earn-Out Recipients for payment through the Company payroll (subject to Section 2.6), in accordance with Schedule 2.5(a) and in the respective amounts set forth in writing by the Seller Representative, with such calculations by the Seller Representative to be provided to Acquiror on the date that is the earlier of (i) thirty (30) calendar days following the final determination of the amount of the Earn-Out Payment in accordance with Section 2.4(b) and (ii) June 7, 2024. Such payment shall be made by Acquiror as soon as reasonably practicable following the Seller Representative’s delivery of the final determination of the amount of the Earn-Out Payments, which such payment shall be made no later than June 15, 2024.
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Determination of Earn-Out Payment. At any time at which either Buyer or Seller (or, in the case of Seller, any of its designees) determine in good faith that the conditions for payment of any of the five Earn-Out Payments have been satisfied, either Buyer shall deliver to Seller, or Seller (or its designee) shall deliver to Buyer, as soon as practicable, a written statement that summarizes the basis for Buyer’s obligation to make the applicable Earn-Out Payment.
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Determination of Earn-Out Payment. As soon as practicable (but in any event within twenty (20) days) after the completion of the audited consolidated financial statements for the Purchaser and its Subsidiaries for each Earn-Out Year, the Purchaser’s Chief Financial Officer (the “CFO”) will prepare and deliver to the DT Representative and Seller Representative a written statement (each, an “Earn-Out Statement”) that sets forth the CFO’s determination in accordance with the terms of this ‎Article II of the Adjusted Net Income for such Earn-Out Year based on such audited financial statements, Annex II and the Exchange Rate Acknowledgement, and whether the Sellers are entitled to receive an Earn-Out Payment for such Earn-Out Year (including giving effect to Section 2.5), and, for the last Earn-Out Year in the Earn-Out Period, whether the Sellers are entitled to receive the Alternative Earn-Out Payment (including giving effect to Section 2.5). Each of the DT Representative and the Seller Representative will have thirty (30) days after its receipt of an Earn-Out Statement to review it. To the extent reasonably required to complete their respective reviews of such Earn-Out Statement, the Purchaser and its Subsidiaries will provide each of the DT Representative and the Seller Representative and their respective Representatives with reasonable access to the books and records of the Purchaser and its Subsidiaries, their respective finance personnel and any other information that the DT Representative or the Seller Representative reasonably requests relating to the determination of the Adjusted Net Income or the Earn-Out Payment for such Earn-Out Year or the Alternative Earn-Out Payment. Either the DT Representative or the Seller Representative may deliver written notice to the CFO (by providing notice to the Purchaser to the attention of the CFO) and the other Party on or prior to the thirtieth (30th) day after receipt of an Earn-Out Statement specifying in reasonable detail any items that they wish to dispute and the basis therefor. If the Seller Representative or the DT Representative fails to deliver such written notice in such thirty (30) day period, then such Party will have waived its right (and, with respect to the Seller Representative, the right of the Sellers, and, with respect to the DT Representative, the right of the Purchaser or its Subsidiaries) to contest such Earn-Out Statement and the calculations set forth therein of the Adjusted Net Income for such Earn-Out Year. If either the DT ...
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Determination of Earn-Out Payment. (i) On or before March 15, 2022, ECS shall prepare and deliver to Carlisle a written statement (the “Earn-out Statement”) setting forth, in reasonable detail and with reasonable supporting documentation, its good faith calculations of (A) the Adjusted EBITDA and (B) the resulting Earn-out Payment (the “Proposed Earn-out Calculation”).
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Determination of Earn-Out Payment. (i) As soon as practicable, but no later than thirty (30) days after the end of each Fiscal Year, Parent shall prepare and deliver to the Shareholder Representative (A) a statement setting forth a calculation of Variable Profits for such Fiscal Year, which calculation shall be determined in accordance with the Determination Principles and (B) in the case of the Fiscal Year ended December 31, 2022, the calculation of the Earn-Out Amount, if any (such calculations, collectively, the “Proposed Earn-Out Calculations”); provided that, if, at the time the Proposed Earn-Out Calculations would otherwise be due in accordance with the foregoing, there is an unresolved dispute in connection with subsection 2.8(d)(iv) of Schedule 2.8, the due date for the Proposed Earn-Out Calculations shall be extended to the date that is thirty (30) days after the final resolution of such dispute; provided, further, that any portion of the Proposed Earn-Out Calculations that is not subject to such dispute (if any) shall be paid without regard to the preceding proviso. Parent shall promptly make available to the Shareholder Representative supporting materials with respect to the Proposed Earn-Out Calculations as the Shareholder Representative may reasonably request and shall discuss the Proposed Earn-Out Calculations in good faith.
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Related to Determination of Earn-Out Payment

  • Earn-Out Payment On or before each of September 15, 2003 and September 15, 2004, Buyer shall calculate the Revenue (as defined below) for the prior twelve (12) month period ending July 31 (each an "Earn Out Period") attributable to the Business, and deliver a notice of the calculation (together with the details of such calculation, including a line item for each element thereof) to Seller. As used in this Agreement, the "Business" means the products sold (together with services provided in connection therewith) by Company at the time of Closing (without regard to product name changes or the like) and listed on Schedule 1.2(b) (solely for purposes of this Section 1.2, the "Products"), and each subsequent version of any such software product introduced during the Earn Out Periods. The Revenue shall be calculated in accordance with generally accepted accounting principles, applied on a consistent basis and consistent with past Company practices (including practices relating to foreign currency conversion), subject to the adjustments set forth in paragraph (c) below. In the event the Revenue for the one-year period ending on July 31, 2003 is greater than $7,295,851 (the "First Threshold"), One Million Dollars ($1,000,000) (the "First Earn Out Payment") of the Purchase Price will be paid in cash to the Seller on September 15, 2003. In the event the Revenue for the one-year period ending July 31, 2004 is greater than $7,295,851 (the "Second Threshold"), an additional one million dollars ($1,000,000) (the "Second Earn Out Payment") of the Purchase Price will be paid in cash to the Seller on September 15, 2004. Neither the First Earn Out Payment nor the Second Earn Out Payment may be increased, decreased, or prorated. If either the First Earn Out Payment or the Second Earn Out Period is not earned with respect to the year to which it relates, it expires and cannot be paid in a later year regardless of Revenue in that later year. Except for the obligations of Buyer and Company set forth in Section 1.2(e), nothing herein shall in any way limit or restrict Buyer's or Company's business practices or decisions following the Closing, provided that those practices and decisions are not solely for avoiding payment of the Earn Out.

  • Determination of Gross-Up Payment Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement

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

  • Earnout Payment In addition to the Closing Payment Shares, if Madhouse meets certain performance requirements during a three-year performance period ending December 31, 2022 as set forth on Schedule II (the “Earnout Provisions”), then the Purchaser shall make the one-time payment (the “Earnout Payment”) determined in accordance with the Earnout Provisions, payable to the Seller and the long-term incentive plan (described below). As set forth in more detail in, and subject to, the Earnout Provisions, the Earnout Payment will be made in the form of (a) the Purchaser issuing to the Seller additional Purchaser Common Shares (the “Earnout Payment Shares”) in the amount calculated pursuant to the Earnout Provisions, (b) a cash payment, (c) a subordinated promissory note issued by the Purchaser to the Seller, or (d) a combination of the foregoing payment methods. The Earnout Payment shall be made by the Purchaser within five (5) Business Days after a final determination of payment due to the Seller pursuant to this Section 3.1. The Purchaser hereby covenants and agrees to perform its obligations set forth in the Earnout Provisions and to maintain the highest number of Purchaser Common Shares potentially issuable under the terms of the Earnout Provisions (which number shall not be less than 22,200,000) available for issuance with respect to Earnout Payment Shares without any restriction or limitation thereof, at all times after the Closing until all of the payment obligations set forth in the Earnout Provisions have been satisfied or have expired. The amount of the Earnout Payment (i) is subject to reduction as set forth in the Earnout Provisions and Article VIII and, (ii) as set forth in the Earnout Provisions, has been partially and irrevocably assigned by Seller to fund a long-term incentive plan to be established for the benefit of designated individuals employed by or associated with the Group Company business, in a manner that shall be determined in Seller’s discretion, provided that Seller shall not receive any portion of such assigned Earnout Payment.

  • Earnout Payments (a) The terms below shall have the following respective meanings for the purposes of this Section 2.3:

  • Exclusion from Compensation Calculation By acceptance of this Agreement, you shall be deemed to be in agreement that the Units covered hereby shall be considered special incentive compensation and will be exempt from inclusion as “wages” or “salary” in pension, retirement, life insurance and other employee benefits arrangements of the Company and its Affiliates, except as determined otherwise by the Company. In addition, each of your beneficiaries shall be deemed to be in agreement that all such shares be exempt from inclusion in “wages” or “salary” for purposes of calculating benefits of any life insurance coverage sponsored by the Company or any of its Affiliates.

  • Adjustment Payment If the Closing Net Working Capital exceeds $690,000,000 (the “Target Net Working Capital”), the Purchase Price shall be increased by the amount by which Closing Net Working Capital exceeds the Target Net Working Capital, and if the Closing Net Working Capital is less than the Target Net Working Capital, the Purchase Price shall be decreased by the amount by which Closing Net Working Capital is less than the Target Net Working Capital. If the Closing Eligible Capital Expenditures exceeds the applicable Target Eligible Capital Expenditures, the Purchase Price shall be increased by the amount by which Closing Eligible Capital Expenditures exceeds such applicable Target Eligible Capital Expenditures, and if the Closing Eligible Capital Expenditures is less than the applicable Target Eligible Capital Expenditures, the Purchase Price shall be decreased by the amount by which Closing Eligible Capital Expenditures is less than such applicable Target Eligible Capital Expenditures. The Purchase Price as so increased or decreased under this Section 2.03(c) shall hereinafter be referred to as the “Adjusted Purchase Price”. If the Closing Date Payment is less than the Adjusted Purchase Price, Purchaser shall, and if the Closing Date Payment is more than the Adjusted Purchase Price, Seller shall, in each case within 10 Business Days after the Closing Date Statement becomes final and binding on the parties, make payment by wire transfer in immediately available funds to one or more accounts designated in writing at least two Business Days prior to such payment by the party entitled to receive such payment, plus interest thereon at a rate of interest equal to 6% per annum, calculated on the basis of the actual number of days elapsed divided by 365, from the Closing Date to the date of payment.

  • Determination of Amount In lieu of the payment of the Exercise Price multiplied by the number of Units for which this Purchase Option is exercisable (and in lieu of being entitled to receive Common Stock and Warrants) in the manner required by Section 2.1, the Holder shall have the right (but not the obligation) to convert any exercisable but unexercised portion of this Purchase Option into Units ("Conversion Right") as follows: upon exercise of the Conversion Right, the Company shall deliver to the Holder (without payment by the Holder of any of the Exercise Price in cash) that number of shares of Common Stock and Warrants comprising that number of Units equal to the quotient obtained by dividing (x) the "Value" (as defined below) of the portion of the Purchase Option being converted by (y) the Current Market Value (as defined below). The "Value" of the portion of the Purchase Option being converted shall equal the remainder derived from subtracting (a) (i) the Exercise Price multiplied by (ii) the number of Units underlying the portion of this Purchase Option being converted from (b) the Current Market Value of a Unit multiplied by the number of Units underlying the portion of the Purchase Option being converted. As used herein, the term "Current Market Value" per Unit at any date means the remainder derived from subtracting (x) the exercise price of the Warrants multiplied by the number of shares of Common Stock issuable upon exercise of the Warrants underlying one Unit from (y) the Current Market Price of the Common Stock multiplied by the number of shares of Common Stock underlying the Warrants and the Common Stock issuable upon exercise of one Unit. The "Current Market Price" of a share of Common Stock shall mean (i) if the Common Stock is listed on a national securities exchange or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or NASD OTC Bulletin Board (or successor such as the Bulletin Board Exchange), the last sale price of the Common Stock in the principal trading market for the Common Stock as reported by the exchange, Nasdaq or the NASD, as the case may be; (ii) if the Common Stock is not listed on a national securities exchange or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or the NASD OTC Bulletin Board (or successor such as the Bulletin Board Exchange), but is traded in the residual over-the-counter market, the closing bid price for the Common Stock on the last trading day preceding the date in question for which such quotations are reported by the Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the fair market value of the Common Stock cannot be determined pursuant to clause (i) or (ii) above, such price as the Board of Directors of the Company shall determine, in good faith.

  • Payments of Post-Closing Adjustment Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated as set forth below, shall (A) be due (x) within five (5) Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause (v) above; and (B) be paid by wire transfer of immediately available funds to such account(s) as is directed by Buyer or Sellers, as the case may be.

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