Earn-Out Sample Clauses

Earn-Out. (a) Buyer agrees to pay to Seller, as additional consideration for the purchase of the Shares, an amount (the “Earnout Amount”) equal to: (i) the Specified Voluntary GWP during the Reference Period, minus (ii) $25,000,000; provided, that in no event shall Buyer pay Seller more than $25,000,000 under this Section 2.6. If the Specified Voluntary GWP during the Reference Period does not exceed $25,000,000, no Earnout Amount shall be due under this Section 2.6. An example calculation of the Earnout Amount is attached hereto as Exhibit I. (b) For purposes of this Section 2.6, the Specified Voluntary GWP and the Earnout Amount shall be determined as follows: (i) Within 30 days following each of (w) the three-month anniversary of the Earnout Commencement Date, (x) the six-month anniversary of the Earnout Commencement Date, (y) the nine-month anniversary of the Earnout Commencement Date and (z) the last day of the Reference Period, Buyer shall prepare and deliver to Seller a statement (each an “Earnout Statement,” and the Earnout Statement delivered pursuant to the foregoing clause (z), the “Final Earnout Statement”) setting forth its good faith calculation of the Specified Voluntary GWP and the corresponding Earnout Amount then-accrued during the Reference Period, and shall pay to the Seller (by wire transfer of immediately available funds to the bank account or accounts designated by Seller to Buyer), with the delivery of the Earnout Statement, any positive Earnout Amount shown thereon and not previously paid to Seller pursuant to this Section 2.6; (ii) Following the Closing and until the final determination of the Earnout Amount pursuant to Section 2.6(b)(iii), subject to Applicable Law, Buyer shall grant Seller and its Representatives, upon reasonable prior notice, reasonable access during normal business hours to the books and records (redacted or aggregated as required to not violate any confidentiality obligations of the Buyer and its Affiliates) of Buyer and its Affiliates directly related to Specified Voluntary GWP that are relevant to the Earnout Statements, and, during such period, Buyer shall furnish to Seller such information that relates to Buyer’s obligations under this Section 2.6 as Seller may from time to time reasonably request; provided such access does not interfere with the conduct of the business of the Buyer or any of its Affiliates in any material respect; (iii) The Final Earnout Statement and its calculation of Specified Voluntary GWP sha...

Earn-Out. (a) Seller shall be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to ...

Earn-Out. (a) If prior to the Closing Date, (i) the Company has elected to protest the March 2004 loss of the Defense Advanced Research Projects Agency (“DARPA”) Contract – solicitation number N00174-03-R-0044 (the “DARPA Contract”) through litigation or other administrative procedure (the “Protest”), (ii) such Protest has not been finally and non-appealably resolved as of the Closing Date and (iii) as a result of such Protest the Company, or any of its successors or Affiliates, is, on or before the final and non-appealable resolution of the Protest (“Earn-Out End Date”), awarded a contract by DARPA (the “Earn-Out Contract”) for similar work as the DARPA Contract and for the same customer as the DARPA Contract, with such work being of at least the same value as the DARPA Contract, namely with an estimated total gross revenue during the term of the Earn-Out Contract of at least Thirty One Million Two Hundred Thirteen Thousand Eight Hundred Fifty Dollars ($31,213,850) (the “Target Earn-Out Contract Requirements”), then Purchaser shall have an obligation (the “Earn-Out Obligation”) to pay to the Sellers, within sixty (60) business days after the final and non-appealable award of the Earn-Out Contract to the Company, or any of its successors or Affiliates, (i) Five Hundred Thousand Dollars ($500,000) (the “Maximum Earn-Out Cash Payment”) and (ii) such number of shares of Purchaser Common Stock having a value of One Million Five Hundred Thousand Dollars ($1,500,000), with such value being determined in accordance with the Earn-Out Valuation (the “Maximum Earn-Out Purchaser Common Shares”) ((i) and (ii) together are referred to as the “Maximum Earn-Out Consideration”). In the event that the actual estimated total gross revenue during the term of the Earn-Out Contract (the “Actual Earn-Out Contract Requirements”) is for a greater amount of estimated total gross revenue during the term of the Earn-Out Contract than the Target Earn-Out Contract Requirements, Purchaser shall have an Earn-Out Obligation to the Sellers equal to the Maximum Earn-Out Consideration. In the event that the Actual Earn-Out Contract Requirements are for a lower amount of estimated total gross revenue during the term of the Earn-Out Contract than the Target Earn-Out Contract Requirements, Purchaser shall have a reduced Earn-Out Obligation to the Sellers (the “Actual Earn-Out Consideration”) determined as follows: The Maximum Earn-Out Consideration shall be multiplied by a fraction, the numerator of whi...

Earn-Out. (a) Subject to the terms and conditions of this Section 2.6, the Earn Out Units shall be issuable to the Company Equity Holders in accordance with the terms of Section 2.2 as follows (any such issuable Earn Out Units, “Earned Earn Out Units”): (i) if at any time during the twelve (12) months following the Closing the VWAP of the Surviving Pubco Class A Shares is greater than or equal to $12.50 over any twenty (20) Trading Days within any thirty- (30-) Trading Day period, 50% of the Earn Out Units; and (ii) if at any time during the twenty-four (24) months following the Closing the VWAP of the Surviving Pubco Class A Shares is greater than or equal to $14.00 over any 20 Trading Days within any 30-Trading Day period, 100% of the Earn Out Units. Notwithstanding anything to the contrary set forth in this Agreement, the number of Earn Out Units to be issued pursuant to this Section 2.6 shall be limited such that in no event shall the Company Equity Holders receive more than 100% of the Earn Out Units. The Surviving Pubco Class A Share price targets in clauses (i) and (ii) shall be equitably adjusted for stock splits, stock dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the Surviving Pubco Class A Shares after the date of this Agreement (other than in respect of issuances of Surviving Pubco Class A Shares in connection with (i) any Additional Equity Financing or (ii) the issuance of the Equity Consideration (including the Estimated Equity Consideration)). (b) In the event of the satisfaction of the threshold set forth in Section 2.6(a)(i) or the threshold set forth in Section 2.6(a)(ii), as soon as practicable (but in any event within five (5) Business Days) after such satisfaction, the Surviving Pubco will deliver to the Company Securityholder Representative a written statement (each, a “Stock Price Earn-Out Statement”) that sets forth (i) the VWAP over the applicable 20-Trading Day period and (ii) the calculation of the amount of Earned Earn Out Units in connection therewith. Any Earned Earn Out Units issuable as a result of the satisfaction of the threshold set forth in Section 2.6(a)(i) or the threshold set forth in Section 2.6(a)(ii) shall be issued to the Company Equity Holders in accordance with Section 2.2 and the Earn Out Payout Schedule within five (5) Business Days after such satisfaction. (c) Following the Closing, including during the twenty-four (24) months following the Closing, the Surviving Pubco a...

Earn-Out. (a) Subject to and in accordance with the remaining provisions of this Section 2.4 and the terms and conditions of Schedule 2.4, Purchaser shall make earn-out payments to Sellers in an aggregate amount (such amounts paid to or earned by Purchaser, the “Earn-Out Consideration”) as set forth on Schedule 2.4. (b) If and when any Earn-Out Consideration becomes owing pursuant to Schedule 2.4, Purchaser shall pay, or shall cause the Company to pay, such Earn-Out Consideration to Sellers according to their Percentage Interest. (c) For purposes of this Section 2.4, Sellers acknowledge and agree that, from and after the Closing, Purchaser shall have the complete right, power and authority to operate and control the Company and the operations of the Company in any manner as it shall determine in its sole and absolute discretion, subject to the provisions in this Section 2.4(c), Purchaser owes no fiduciary duty to Sellers with respect to the operation of the Company, Purchaser or otherwise. Notwithstanding the foregoing, following the Closing and through December 31, 2024, Purchaser shall, and shall cause its Affiliates to (i) maintain the Company and Excel Leasing as a separate legal entities, (ii) keep the Company’s and Excel Leasing’s books and records in a manner that will facilitate the recording, compiling and analysis of all information relevant to the determination and calculation of the Earn-Out Consideration, (iii) not take any action with the purpose of reducing the Earn-Out Consideration, (iv) not allocate any corporate or other charges from the Company or its Affiliates to the Company or Excel Leasing that would negatively impact the Earn-Out Consideration in an amount in excess of the corresponding corporate or other charge incurred by the Company or Excel Leasing prior to Closing consistent with past practice (provided that if any such charges are allocated and are greater than the charges incurred by the Company or Excel Leasing prior to Closing, such charges shall be excluded from the calculations of the Earn-Out Consideration) other than allocations for applicable corporate overhead costs (e.g., human resources, legal, compliance, sales, business development and any other functional areas), and (v) operate the Company and Excel Leasing in good faith and in the Ordinary Course of Business of the Company and Excel Leasing (to the extent permitted by applicable Law), except to the extent reasonably necessary for integration planning or with the prior c...

Earn-Out. (a) Subject to the terms and conditions of this Section 1.5, Purchaser will pay to the Individuals, as additional Purchase Price for the Acquired Shares, an amount equal to three times the amount, if any, by which the total EBITDA for the 2016 fiscal year for the Companies (the “2016 EBITDA”) exceeds $15,655,477 (the “Earn Out Amount”). (b) To determine the 2016 EBITDA amount, Purchaser’s independent public accountants will calculate, in accordance with GAAP and consistent with the same manner in which the Companies’ 2015 Audited Financial Statements were prepared, the EBITDA of each of the Companies for its 2016 fiscal year and the sum of the total EBITDA of the Companies for their 2016 fiscal year. Such calculations will be undertaken promptly after the Closing, and a copy of such final calculations will be provided to Purchaser and Equityholders’ Representative by such accountants (such final calculations being referred to as, the “Auditor’s Report”). The parties agree that the costs incurred by the Companies in 2016 that are solely related to: (i) the Companies’ responses to the due diligence requests of Purchaser; (ii) the restatement of the Companies’ financials at Purchaser’s request; and (iii) preparing to consummate the transactions contemplated by this Agreement, including the Pre-Closing Reorganization, which costs will be set forth on Schedule 1.5 and attached hereto at the Closing, shall not be deducted from the Companies’ earnings for purposes of calculating the 2016 EBITDA. (c) Following the receipt by Equityholders’ Representative of the Auditor’s Report, Purchaser shall permit Equityholders’ Representative reasonable access during normal business hours to the books and records pertaining to the preparation of the Auditor’s Report and provide Equityholders’ Representative with copies thereof (as reasonably requested by Equityholders’ Representative) and such additional information as Equityholders’ Representative may reasonably request to confirm the Earn Out Amount. The Equityholders agree that the scope of such audit shall be reasonable and as is customary in transactions of this kind. All costs and fees incurred by the parties related to the exercise of the audit right shall be borne by each of the respective parties. If the parties fail to mutually agree on the Earn Out Amount after 30 days following the receipt of the Auditor’s Report by Equityholders’ Representative, then the parties shall submit the issues then-remaining in dispute t...

Earn-Out. In addition to the Closing Shares payable and issuable at the Closing pursuant to this Section 2.1, the Shareholders shall be entitled to receive the Earn-Out Amount determined and payable as provided in this Section 2.1(n). (i) The parties agree that, during the Earn-Out Period, (A) the operations previously conducted by the Company in the New York Region shall be conducted as a separate subsidiary or division of PentaStar with no other operations other than the operations of DSS, if acquired, (B) the Acquiror shall account for its operations in the New York Region in accordance with the accounting practices of PentaStar, (C) budgets (including for new hires, compensation and marketing shall be mutually constructed by PentaStar and the designee of Mr. Xxxxxx xxx Mr. Xxxxxxx (xx long as Mr. Xxxxxx xx Mr. Xxxxxxx xx employed by the Acquiror), which designee shall initially be Mr. Xxxxxx (xxould Mr. Xxxxxx xxxse to serve as designee while employed by the Acquiror or leave the employment of the Acquiror, such designee shall be Mr. Xxxxxxx xx he is at that time employed by the Acquiror), (D) the business of the Acquiror shall be conducted by the Acquiror and/or PentaStar in the usual and ordinary course of PentaStar's business operations and neither the Acquiror nor PentaStar shall have any Liability to the Shareholders or any other Person for so conducting the business and (E) in operating the business of the Acquiror, the Acquiror and/or PentaStar may make decisions or take action with respect to the business of the Acquiror that impacts, directly or indirectly, positively or negatively, the potential benefit of the Earn-Out arrangement. If the Shareholders believe that the Acquiror and/or PentaStar has made a decision or taken an action which will have a material adverse effect on the potential benefit to the Shareholders of the Earn-Out arrangement, the Shareholders' Agent shall so notify PentaStar (which notice shall also set forth the Shareholders' belief as to the potential adverse effect thereof) within 10 Business Days of any Shareholder having knowledge of such decision or action, and PentaStar and the Shareholders' Agent shall thereafter attempt in good faith to determine the most appropriate course of action to mitigate such adverse effect, if any. However, the parties further agree that, absent conduct engaged in by the Acquiror and/or PentaStar with the purpose of materially adversely affecting the potential benefit to the Shareholders of the Ear...

Earn-Out. Nothing in this Agreement shall affect Executive's right to Earn-Out payments under the Stock Purchase Agreement.

Earn-Out. (a) Purchaser shall pay to the Sellers as additional consideration for the Purchased Assets an amount in cash not to exceed in the aggregate $53,000,000 (the “Earn-Out”) in accordance with this Section 2.7. An Earn-Out Payment (as defined below) may be achieved for each of the 12-month periods ending on December 31, 2014 and December 31, 2015 (each, an “Earn-Out Year”) as follows: (b) On or before February 28, 2015, Purchaser shall pay to the Sellers, an amount based on Total Revenues for the Earn-Out Year ending December 31, 2014, calculated as follows: (i) if Total Revenues for such Earn-Out Year are less than $30,000,000, no Earn-Out Payment will be due and payable; or (ii) if Total Revenues for such Earn-Out Year are greater than $30,000,000 but less than $50,000,000, an amount equal to fifteen percent (15%) of the Total Revenues for such Earn-Out Year multiplied by a fraction, the numerator of which is Total Revenues for such Earn-Out Year in excess of $30,000,000 and the denominator of which is $20,000,000; or (iii) if Total Revenues for such Earn-Out Year are greater than $50,000,000, an amount equal to fifteen percent (15%) of Total Revenues. (c) On or before February 29, 2016, Purchaser shall pay to the Sellers, an amount based on Total Revenues for the Earn-Out Year ending December 31, 2015, calculated as follows: (i) if Total Revenues for such Earn-Out Year are less than $40,000,000, no Earn-Out Payment will be due and payable; or (ii) if Total Revenues for such Earn-Out Year are greater than $40,000,000 but less than $60,000,000, an amount equal to fifteen percent (15%) of the Total Revenues for such Earn-Out Year multiplied by a fraction, the numerator of which is Total Revenues for such Earn-Out Year in excess of $40,000,000 and the denominator of which is $20,000,000; or (iii) if Total Revenues for such Earn-Out Year are greater than $60,000,000, an amount equal to fifteen percent (15%) of Total Revenues. (d) No later than 30 days after Astronics Corporation files its quarterly financial statements for a quarter of an Earn-Out Year with the Securities and Exchange Commission, Purchaser will provide a reasonably detailed breakdown of all of Purchaser’s and Astronics Corporation’s (including any Subsidiaries’) revenues includable in Total Revenues to Sellers in a form that will enable Sellers to reasonably estimate the amount of the potential Earn-Out Payment attributable to such quarter. Purchaser shall deliver to the Sellers a computation (t...

Earn-Out. As additional consideration for the Purchase, Buyer agrees to pay Sellers a one-time payment of up to an additional Twenty-Five Million Dollars ($25,000,000.00) (the “Earn-Out Payment”), as follows: (i) The Earn-out Payment shall be Seven Million Five Hundred Thousand Dollars ($7,500,000.00) if Platinum Vape earns Revenue of at least Eighty Million Dollars ($80,000,000.00) but less than Ninety Million Dollars ($90,000,000.00) within the twelve (12) months immediately following the Closing Date (the “Earn-out Period”); (ii) The Earn-out Payment shall be Fifteen Million Dollars ($15,000,000.00) if Platinum Vape earns Revenue of at least Ninety Million Dollars ($90,000,000.00) but less than One Hundred Million Dollars ($100,000,000.00) within the Earn-out Period; and (iii) The Earn-out Payment shall be Twenty Five Million Dollars ($25,000,000.00) if Platinum Vape earns Revenue of more than One Hundred Million Dollars ($100,000,000.00) within the Earn-out Period. (iv) As a condition to earning the Earn-Out Payment, both of the following must be true: (x) the Company’s EBIT for the Earn-out Period was at least fifteen percent (15%) of Revenue during the Earn-out Period, and (y) Sellers have continued to be employed by RWB or any Company for the entire the Earn-out Period; unless, Sellers resigned for “Good Reason” or were terminated without “Cause,” pursuant to their respective Employment Agreements. (v) Procedures for Determination of Earn-out Payments. (A) On or prior to the date that is ten (10) business days after the end of the Earn-out Period (the “Earn-out Calculation Delivery Date”), Buyer shall prepare and deliver to Sellers a written statement (the “Earn-out Calculation Statement”) setting forth in reasonable detail its determination of Revenue for the Earn-out Period, EBIT for the Earn-out Period, and its calculation of the resulting Earn-out Payment, if any (the “Earn-out Calculation”). (B) Seller shall have ten (10) business days after receipt of the Earn- out Calculation Statement (the “Earn-out Review Period”) to review the Earn-out Calculation Statement and the Earn-out Calculation set forth therein. During the Earn-out Review Period, Sellers and their representatives shall have the right to inspect the Company’s books and records during normal business hours at the Company’s offices. Prior to the expiration of the Earn-out Review Period, Sellers may object to the Earn-out Calculation set forth in the Earn-out Calculation Statement by delivering...