Earn-Out. (a) In addition to the Purchase Price, if the Company meets or exceeds (i) the Revenue Target and (ii) the Product Margin Target, Purchaser shall pay in cash to Sellers, on a pro-rata basis, the Earn-Out Amount less the product of the Stock Consideration and the ADS Appreciation Ratio (the “Earn-Out”) exclusive of any Tax, fees or other expenses of any kind; provided that the exchange rate shall be fixed at the Exchange Rate for the calculation of the Earn-Out. The Earn-Out shall not exceed the Earn-Out Amount.
(b) Within ten (10) business days after the announcement date of Parent’s fourth quarter fiscal year 2007, Purchaser shall prepare, or cause to be prepared, and deliver to the Sellers’ Representative (i) a statement setting forth the Product Revenues for the calendar year 2007, each component used in the calculation thereof, the ADS Appreciation Ratio and the amount of the Earn-Out determined in accordance with Section 2.4(a) (the “Earn-Out Statement”), which shall be prepared in accordance with the Adjusted Korean GAAP, at Purchaser’s cost and expense, and (ii) such documentation, if any, as may be reasonably necessary to enable the Sellers’ Representative to determine such amount. Concurrently with the delivery of the Earn-Out Statement, Purchaser shall deposit into a nominated account as established by the Sellers’ Representative for payment to Sellers, on a per share basis, the amount of the Earn-Out, if any, specified in the Earn-Out Statement.
(c) After receipt from Purchaser of the Earn-Out Statement and, if applicable, the Earn-Out, Sellers shall have the right, at its cost and expense, and upon not less than seven (7) days’ prior written notice to Purchaser, to (i) meet with Purchaser and the Company Accounting Firm to discuss Purchaser’s calculation of the amount of the Product Revenues, the ADS Appreciation Ratio and the Earn-Out as set forth in the Earn-Out Statement and (ii) have reasonable access during normal business hours to inspect the books and records of the Company and working papers (including those prepared by advisors and other third parties, to the extent permitted thereby) relating to such calculation. If the Sellers’ Representative fails to challenge Purchaser’s determination of the Product Revenues, the ADS Appreciation Ratio and the amount of the Earn-Out by the delivery of a written notice to Purchaser (the “Earn-Out Dispute Notice”) within sixty (60) days after receipt by the Sellers’ Representative of the Earn-Out Sta...
Earn-Out. In addition to the Closing Purchase Price, the earn-out amounts set forth below can be earned and shall be paid, if earned, to Sellers.
(a) Up to an aggregate of One Million Three Hundred Thirty Three Thousand Dollars ($1,333,000) (the “Annual Maximum”) can be earned based on the AEBITDA of the Sellers’ Operations during each of the twelve (12) month periods (each a “Measurement Period”) ending June 30 of 2011 through and including 2015.
(i) If the AEBITDA for any applicable Measurement Period is equal to or greater than the Target AEBITDA, then earn-out amount for such Measurement Period shall be equal to the Annual Maximum for such Measurement Period and such amount shall be deemed earned as of the expiration of such Measurement Period and be payable by Purchaser to Sellers as and when provided in Section 2.7(c) hereof.
(ii) If the AEBITDA for any applicable Measurement Period is less than the Target AEBITDA, then the earn-out amount for such Measurement Period shall be equal to (A) the Annual Maximum for such Measurement Period, minus (B) the amount by which the actual AEBITDA for such Measurement Period is less than the Target AEBITDA, and such amount shall be deemed earned as of the expiration of such Measurement Period and be payable by Purchaser to Sellers as and when provided in Section 2.7(c) hereof.
(iii) Subject to Section 2.7(b) hereof, if the AEBITDA for any applicable Measurement Period is zero or negative then no earn-out amount for such Measurement Period shall be deemed earned or be payable by Purchasers to Sellers.
(b) If the Annual Maximum is not earned for any of the first four (4) Measurement Periods, then up to Two Hundred Sixty Six Thousand Dollars ($266,000) of the amount not earned may be recaptured (the “Recapture Maximum”) to the extent that the AEBITDA in the immediately subsequent Measurement Period is greater than the Target AEBITDA, in which case, the amount of the recapture earn-out shall be equal to the amount that the applicable AEBITDA exceeds the Target AEBITDA on a dollar for dollar basis, up to the Recapture Maximum for such immediately subsequent Measurement Period. Similarly, if the Annual Maximum is not earned in any of the final four (4) Measurement Periods, then up to Two Hundred Sixty Six Thousand Dollars ($266,000) of the amount not earned may carried forward (the “Carry-forward Maximum”) to the extent that the AEBITDA in the immediately prior Measurement Period is greater than the Target AEBITDA, in which case,...
Earn-Out. (a) As additional consideration (the “Earn-Out Consideration”) for the Equity Interests and Transferred Assets, Purchaser shall pay to Seller Parent (on behalf of Sellers) an amount, if any, equal to: (i) Three Million Dollars ($3,000,000.00) if the Combined Adjusted EBITDA Margin exceeds five percent (5%); and (ii) an additional Two Million Dollars ($2,000,000.00) if the Combined Adjusted EBITDA Margin exceeds seven percent (7%) (it being understood that the amounts set forth in the foregoing clauses (i) and (ii) are cumulative and not alternative), in each case in accordance with this Section 2.5. For the avoidance of doubt, in no event shall the Earn-Out Consideration payable to Sellers pursuant to this Section 2.5 exceed Five Million Dollars ($5,000,000.00) in the aggregate (the “Maximum Earn-Out Consideration Amount”).
(b) Following the Closing, Purchaser shall, and shall cause its Affiliates (including the Transferred Entities) to, (i) maintain adequate financial records for, and allocate costs to, the Combined Business in accordance with Purchaser’s internal reporting policies and requirements and US GAAP; and (ii) not take or omit to take any actions with a purpose or intention to avoid, reduce, or otherwise frustrate the payment of the Earn-Out Consideration.
(c) With respect to each of Fiscal Year 2016 and Fiscal Year 2017, no later than 10 days after the filing of Purchaser’s annual report on Form 10-K with the SEC for such fiscal year or, if Purchaser is no longer required to file such report or if such report is not timely filed by Purchaser, no later than 75 days after the end of such fiscal year, Purchaser shall prepare (or cause to be prepared) and deliver to Seller Parent financial statements (the “Earn-Out Financial Statements”) prepared in accordance with US GAAP consistently applied and consisting of a balance sheet and statements of income, changes in stockholders equity and cash flows of the Combined Business as of the end of, and for, such fiscal year, together with calculations of (i) in respect of the Earn-Out Financial Statements delivered for Fiscal Year 2016, the Combined Adjusted EBITDA and Combined Revenue for Fiscal Year 2016 and (ii) in respect of the Earn-Out Financial Statements delivered for Fiscal Year 2017, the Combined Adjusted EBITDA and Combined Revenue for Fiscal Year 2017 and the resulting calculation of the Combined Adjusted EBITDA Margin. Following delivery of any Earn-Out Financial Statements to Seller Parent, P...
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) Buyer shall pay Seller an "earn-out" amount based upon operating margins attributable to the operation of the Business for the period commencing on the Closing Date and ending on the last day of the month closest to the first anniversary of the Closing Date (the "Earn-Out Period"), as follows:
(b) Within ninety (90) days of the end of the Earn-Out Period, Buyer shall provide Seller (with appropriate supporting documentation) with its calculation of the "net sales" attributable to the Business for such period, as well as a calculation of the "operating margin" for the Business for such period.
(c) For purposes of this Agreement, the "operating margin" for the Business with respect to the Earn-Out Period shall be calculated by dividing the earnings of the Business (calculated in accordance with GAAP) before interest, taxes, extraordinary items and any depreciation and/or amortization associated with the consummation of the transactions contemplated hereby for such period by the "net sales" attributable to the Business for such fiscal year.
(d) The Buyer shall cause its auditors to calculate the "net sales" attributable to the Business for the Earn-Out Period in accordance with GAAP in a manner consistent with the calculation of the Seller's "net sales" as reflected on the Seller's audited financial statements at June 25, 2002.
(e) The amount of the "earn-out" payable by Buyer to Seller shall be calculated by multiplying the sum of five hundred thousand and No/100 Dollars ($500,000.00) by the Percentage of Earn-Out set out below opposite the "Operating Margin" for the Business for the Earn-Out Period: Operating Margin Percentage of Earn-Out ---------------- ----------------------
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. (a) In addition to the Closing Date Buyer Shares and the Holdback Shares, Sellers shall be eligible to receive an earn-out payment of an aggregate of $2,164,451 payable in cash (the “Milestone Payment”) following the closing if Buyer receives approval of a 505(b)(1) New Drug Application (or NDA), a 505(b)(2) New Drug Application (or NDA), a Premarket Approval Application (or PMA) or a 510(k) Premarket Notification by the U.S. Food and Drug Administration with respect to any product developed by the Company prior to the Closing Date, which, for the avoidance of doubt, shall include any product substantially derived from a product developed by Jade prior to the Closing Date and any other product covered by a claim of a Jade patent filed prior to the Closing Date (each, an “FDA Approval”).
(b) Buyer shall promptly notify Seller Representative after an FDA Approval has been received. Within 30 days of notification by Buyer to Seller Representative of the receipt of a FDA Approval, Buyer shall pay or cause to be paid the Milestone Payment in cash by wire transfer of immediately available funds to a bank account designated by Seller Representative in writing.
(c) Subject to the terms of this Agreement and the other Transaction Documents, subsequent to the Closing, Buyer shall have sole discretion with regard to all matters relating to the operation of the Company.
(d) Buyer shall have the right to withhold and set off against any amount otherwise due to be paid pursuant to this Section 2.03 (i) the amount of any Post-Closing Adjustment owed to it pursuant to Section 2.05, (ii) the amount of any claim for indemnification or payment of damages to which Buyer may be entitled under this Agreement or any of the other Transaction Documents and (iii) if Buyer enters into a binding license agreement with the University of Utah prior to the Holdback Release Date that is related to negotiations that were initiated by Jade prior to the Closing (the “University Agreement”), an amount equal to $106,502.87.
(e) The parties hereto understand and agree that (i) the contingent rights to receive the Milestone Payment shall not be represented by any form of certificate or other instrument, are not transferable, except by operation of Laws relating to descent and distribution, divorce and community property, by charitable donation to a non-profit entity or by assignment to a family corporation or similar entity, and do not constitute an equity or ownership interest in Buyer or the ...
Earn-Out. Nothing in this Agreement shall affect Executive's right to Earn-Out payments under the Stock Purchase Agreement.
Earn-Out. (a) Seller shall receive, as additional purchase price the following payments, if any, determined in accordance with the terms and conditions of this Section 2.2 (collectively, “Additional Purchase Price Payments”) and the Business EBITDA Benchmarks set forth below, without duplication (the “Business EBITDA Benchmarks”):
(i) If the Business EBITDA is greater than or equal to $50,000,000 in any calendar year following the Closing from and including calendar year 2007 to and including calendar year 2009, Buyer shall pay to Seller a one time payment of $25,000,000;
(ii) If the Business EBITDA is greater than or equal to $55,000,000, in any calendar year following the Closing from and including calendar year 2007 to and including calendar year 2009, Buyer shall pay to Seller a one time payment of an aggregate of $40,000,000, less any amounts previously paid to Seller under Section 2.2(a)(i);
(iii) If the Business EBITDA is greater than or equal to $59,000,000, in any calendar year following the Closing from and including calendar year 2007 to and including calendar year 2009, Buyer shall pay to Seller a one time payment of an aggregate of $50,000,000, less any amounts previously paid to Seller under Sections 2.2(a)(i) and (ii); and
(iv) Notwithstanding the foregoing, if the Business EBITDA is less than $59,000,000 in each calendar year following the Closing from and including calendar year 2007 to and including calendar year 2009 but is greater than or equal to $59,000,000 in calendar year 2010, Buyer shall pay to Seller a one time payment of $10,000,000, less any amounts previously paid to Seller under Sections 2.2(a)(i), (ii) and (iii) in excess of $40,000,000. For the avoidance of doubt, the Parties hereby agree that Seller shall be entitled to receive no more than $50,000,000 under any circumstances under this Section 2.2. The Business EBITDA Benchmarks may be adjusted pursuant to Section 2.2(g) and Section 2.2(h)(ii) below.
(b) On or before March 31st of each of 2008, 2009, 2010 and 2011, Buyer shall (i) provide a statement of the Business EBITDA for the preceding calendar year derived from Buyer’s audited consolidated Financial Statements, which Buyer’s audited consolidated Financial Statements shall be prepared in accordance with GAAP, and Buyer’s calculation of the Additional Purchase Price Payments, if any (collectively the “Earn-Out Statement”), and (ii) deliver the Earn-Out Statement to Seller; provided that such statements shall cease to be require...
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...
