Earn-Out Sample Clauses

Earn-Out. (a) At the Closing, in addition to the consideration to be received pursuant to Section 3.02 and as part of the overall consideration payable to the holders of Company Common Stock and holders of Company Vested In-the-Money Options pursuant to this Agreement, Holdco shall place the Earn-Out Shares into escrow with the Escrow Agent pursuant to the Escrow Agreement. If, at any time during the period beginning on the Closing Date and expiring at the close of business on the second anniversary of the Closing Date (the “Earn-Out Period”), the VWAP of Holdco Common Stock shall be equal to or greater than $12.50 for any twenty (20) Trading Days within a period of thirty (30) consecutive Trading Days (the “Earn-Out Trigger”), then within ten (10) Business Days following the achievement of the Earn-Out Trigger, Holdco shall instruct the Escrow Agent to deliver the Earn-Out Shares to the holders of Company Common Stock and holders of Company Vested In-the-Money Options, in each case in accordance with the Payment Spreadsheet. (b) If a Change of Control occurs during the Earn-Out Period that results in the holders of shares of Holdco Common Stock receiving consideration equal to or in excess of $12.50 per share, then, immediately prior to the consummation of such Change of Control, (i) the Earn-Out Trigger, to the extent that it has not been previously satisfied, shall be deemed to be satisfied, and (ii) Holdco shall promptly instruct the Escrow Agent to deliver the Earn-Out Shares to the holders of Company Common Stock and holders of Company Vested In-the-Money Options, in each case in accordance with the Payment Spreadsheet. (c) If the Earn-Out Trigger shall not be achieved during the Earn-Out Period, then, upon expiration of the Earn-Out Period, the obligations in this Section 3.04 shall terminate and no longer apply and Holdco shall instruct the Escrow Agent to deliver the Earn-Out Shares to Holdco for cancellation. (d) The Earn-Out Shares and the Earn-Out Trigger shall be adjusted, and additional shares of Holdco Common Stock shall be delivered to the Escrow Agent as necessary, to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Holdco Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Holdco Common Stock, occurring on or after the date hereof and prior to the time any ...

Earn-Out. (a) Promptly following the finalization of Parent’s audited financial results for the year ended on December 31, 2021 (the “Measurement Date”), and in any event no later than April 30, 2022, Purchaser shall determine whether or not a Full Earn-Out Consideration Event or Partial Earn-Out Consideration Event has occurred (the “Earn-Out Determination”) and shall provide written notice of such determination to Seller, which notice shall include the Realized CM (as defined below) (the “Earn-Out Notice”). Upon receipt of the Earn-Out Notice, Seller (and to the extent reasonably requested, its Representatives) will be given reasonable access upon reasonable notice to Purchaser’s (or the applicable Purchaser Designee’s) relevant books, records, workpapers and personnel related to the information and calculations used to calculate the Realized CM (subject to customary confidentiality, hold harmless or release agreements related to such access) during business hours for the limited purpose of verifying such amount. (b) If Purchaser does not receive any written objections from Seller to the amount of the Realized CM or Purchaser’s Earn-Out Determination within 30 days following Purchaser’s delivery of the Earn-Out Notice to Seller then Seller shall be deemed to have no objection to the Realized CM and the Earn-Out Determination, which shall become final and binding on the Parties. If Seller does not agree that the Earn-Out Notice contains the correct Earn-Out Determination Seller shall promptly (but not later than 30 days after the delivery of the Earn-Out Notice) give written notice to Purchaser of any objections thereto (describing in reasonable detail the nature of the disagreement asserted), and all undisputed amounts with respect to such calculation shall thereupon become binding, final and conclusive upon the Parties and enforceable in a court of law, absent manifest error or fraud. Purchaser and Seller shall negotiate in good faith to resolve any disputes and agree upon the resulting calculations in such statement. If Seller and Purchaser resolve such disputes within 30 days after the applicable written notice of objection is delivered by Seller to Purchaser (any such period, an “Earn-Out Reconciliation Period”), the applicable calculation and resulting Realized CM and Earn-Out Determination shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all Parties and enforceable in a court of law, absent manifest error or fraud. ...

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 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) Earn-Out Shares. In the event Pacific Magtron, Inc. ("PMI"), Pacific Magtron (GA), Inc. ("PMI-GA"), and LiveWarehouse, Inc. ("LW") achieve the Milestones (as defined in Section 4.3(b) below) for any year during the three (3) year period commencing January 1, 2005 and expiring December 31, 2007, Executive shall have the right to receive on March 31 of the immediately following calendar year, the applicable ratable portion of 66,666,666 shares of restricted common stock of ACT (priced at $.01 per share, or $666,666 in the aggregate), to be earned at the end of each such year at the rate of 25% for each of the first and second years and 50% for the third year (the "Shares"); provided, that in the event the Milestones are not achieved in any year, except as provided below, such ratable portion of Shares shall be forfeited entirely, without any ability to re-earn such Shares in a future year; provided further, that in the event Executive's employment with the Company is terminated for "cause" by the Company (as contemplated by Section 6.1 of this Agreement) prior to the expiration of the initial Employment Period, all of the Shares earned or to be earned by Executive shall be forfeited. In the event that Executive's employment with the Company is terminated prior to the expiration of the initial Employment Period for any reason other than "cause," Executive shall be permitted to receive the Shares earned by him prior to such termination, but shall in no event be entitled to receive Shares to be earned after the Termination Date (as defined in Section 6.1 below). Notwithstanding the foregoing, the number of Shares and the price per Share shall be adjusted accordingly for stock splits, reverse stock splits and other recapitalizations effected by ACT, so that Executive retains the right, after accounting for such adjustment, to receive the same percentage of ACT's outstanding shares of Common Stock as Executive would have had the right to receive had such adjustment not been so effected. Upon earning the Shares at the end of each year, if applicable, the Shares will be placed in escrow with a mutually agreeable escrow agent to be held and released in accordance with the terms of an escrow agreement in substantially the form of Exhibit "A" hereto; provided, however, that in the event that the employment of Executive is terminated by the Company prior to the expiration of the initial Employment Period without cause (as contemplated by Section 6.2 of this Agreeme...

Earn-Out. (A) As part of the Purchase Price, subject to the terms of this Section 3.2, and except for a possible fourth payment under Section 3.2(D)(iii) below, Buyer shall make to BM and BMM up to three additional payments ("Annual Earn-Out Payments") and up to one additional payment during the first Earn-Out Year (the "Additional Earn-Out Payment"). The Annual Earn-Out Payments and the Additional Earn-Out Payment are referred to herein as an Earn-Out Payment", and, collectively, as the "Earn-Out Payments". Each Earn-Out Payment, if any, shall be made in cash to an account jointly designated by BM and BMM (transfer to which account BM and BMM agree constitutes good delivery to each of them of any such Earn-Out Payment). Not later than thirty (30) days following each Earn-Out Year (as defined in Section 3.2(B)), Buyer shall provide to the BM and BMM a preliminary statement (the "Preliminary Earn-Out Statement") setting forth the estimated amount of Operating Income (as defined in Section 3.2(F)) and the estimated amount of the Annual Earn-Out Payment, if any, payable for such Earn- Out Year in accordance with this Section 3.2, and a detailed description of the calculations of estimated Operating Income and the estimated amount of the Annual Earn-Out Payment. The information contained in each Preliminary Earn-Out Statement shall be subject to revision in the Definitive Earn-Out Statement (defined below). Not later than ninety (90) days following the end of each Earn- Out Year, Buyer shall prepare and deliver to BM and BMM a statement (the "Definitive Earn-Out Statement") setting forth the amount of Operating Income, the amount of the Annual Earn-Out Payment, if any, payable for such Earn-Out Year in accordance with this Section 3.2 and a detailed description of the calculations of Operating Income and the amount of the Annual Earn-Out Payment. Any Annual Earn-Out Payment reflected on a Definitive Earn-Out Statement shall be paid by Buyer, by wire transfer without setoff or deduction, except as, and only to the extent, provided in Section 12.2 below, to an account designated by BM and BMM, not later than the twentieth (20th) business day following the delivery of such Definitive Earn-Out Statement unless an objection is made to such Definitive Earn-Out Statement as provided in Section 3.2(H) below. Any objections made to the calculation of Operating Income and/or the amount of the Annual Earn-Out Payment or to the calculation of the Additional Earn-Out Payment shall b...

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

Earn-Out. (a) As additional consideration for the Purchased Interests, Sellers may be entitled to receive earn-out payments (the “Earn-Out Payments”) in the form of issued and outstanding equity interests in Buyer or its successor (“Buyer Shares”), up to an aggregate value of $15,000,000 (as used in this Agreement, the number of Buyer Shares issued to Seller is based upon the market price of said shares at time of issuance), in accordance with the following: (i) For the calendar year ending December 31, 2023 (the “2023 Earn-Out Period”) (1) if Gross Revenues of the Company are greater than or equal to $47,200,000.00 (the “2023 Gross Revenue Target”) then Sellers shall be entitled to an Earn-Out Payment in an aggregate value equal to $2,500,000.00 of Buyer Shares, and (2) if the EBITDA of the Company is greater than or equal to $4,200,000.00 (the “2023 EBITDA Target”, and together with the 2023 Gross Revenue Target, the “2023 Targets”) then Sellers shall be entitled to an Earn-Out Payment in an aggregate value equal to $2,500,000.00 of Buyer Shares. Seller will be deemed to have met the 2023 Gross Revenue Target or the 2023 EBITDA Target if the final figures are at least ninety percent (90%) of the individual target. The highest Earn-Out Payment Sellers may achieve in 2023 is capped at $5,000,000.00 if both 2023 Targets are achieved. (ii) For the calendar year ending December 31, 2024 (the “2024 Earn-Out Period”) (1) if Gross Revenues of the Company are greater than or equal to $57,700,000.00 (the “2024 Gross Revenue Target”) then Sellers shall be entitled to an Earn-Out Payment in an aggregate value equal to $2,500,000.00 of Buyer Shares, and (2) if the EBITDA of the Company is greater than or equal to $6,500,000.00 ( the “2024 EBITDA Target”, and together with the 2024 Gross Revenue Target, the “2024 Targets”) then Sellers shall be entitled to an Earn-Out Payment in an aggregate value equal to $2,500,000.00 of Buyer Shares. Seller will be deemed to have met a 2024 Target if the final figures are at least ninety percent (90%) of the individual Target. The highest Earn-Out Payment Seller may achieve in 2024 is capped at $5,000,000.00 if both 2024 Targets are achieved.. (iii) For the calendar year ending December 31, 2025 (the “2025 Earn-Out Period”) (1) if Gross Revenues of the Company are greater than or equal to $63,500,000.00 (the “2025 Gross Revenue Target”) then Sellers shall be entitled to an Earn-Out Payment in an aggregate value equal to $2,500,000.00 of Buye...

Earn-Out. A. Each Sponsor agrees that the number of HMAUF Shares owned by such Sponsor and set forth opposite such Sponsor’s name in the column captioned “Earn-Out Shares” on Exhibit A (the “Earn-Out Shares”) shall be forfeited and cancelled unless the First Earn-Out Milestone is met or the Second Earn-Out Milestone is met. Each Sponsor agrees to enter into the Escrow Agreement with the Escrow Agent, the Sellers and the Company simultaneously with the Closing. B. At the Closing, each Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent shall transfer and deliver to the Escrow Agent under the Escrow Agreement such Sponsor’s Earn-Out Shares. At the Closing, each Sponsor whose HMAUF Shares are held by the IPO Escrow Agent shall deliver irrevocable instructions to the IPO Escrow Agent to deliver to the Escrow Agent such Sponsor’s Earn-Out Shares at the time such Earn-Out Shares would otherwise be delivered to such Sponsor under the IPO Escrow Agreement. At the Closing, each Sponsor shall deliver to the Escrow Agent all stock powers, assignments and related documents as may be necessary to effect the transfer to the Company and cancellation of such Sponsor’s Earn-Out Shares. C. If the First Earn-Out Milestone is met, each Sponsor shall be entitled to receive such Sponsor’s Earn-Out Shares on the First Earn-Out Milestone Date. If the First Earn-Out Milestone is not met but the Second Earn-Out Milestone is met, each Sponsor shall be entitled to receive such Sponsor’s Earn-Out Shares on the Second Earn-Out Milestone Date. If neither the First Earn-Out Milestone nor the Second Earn-Out Milestone is met, all of the Earn-Out Shares shall be forfeited to the Company and cancelled. The Earn-Out Shares shall be released to the Sponsors or the Company at the times and in the manner provided in the Escrow Agreement.