Earn-Out Calculation Clause Samples

Earn-Out Calculation. Upon determination of the Pro-forma Combined Initial EBITDA and the Resulting EBITDA (each as finally determined pursuant to Section 2.4(c)) if the Resulting EBITDA exceeds the Pro-forma Combined Initial EBITDA, then Survivorco shall pay to Seller an amount equal to the result of the following formula (such result, the "Canadian Earn-Out Amount"): the product of (A) the Resulting EBITDA less the Pro-forma Combined Initial EBITDA, multiplied by (B) six (6), and further multiplied by two hundred twenty five one-thousands (0.225) multiplied by (C) eight elevenths (0.7273). Survivorco shall pay to Seller an amount of cash equal to the Canadian Earn-Out Amount by wire transfer of immediately available funds to an account or accounts designated in writing by Seller. Such payment is to be made on the later of (x) March 31, 2009 or (y) within 5 Business Days of the date on which the Pro-forma Combined Initial EBITDA and the Resulting EBITDA are finally determined pursuant to Section 2.4(c). Such payment shall bear interest at 5% per annum from March 31, 2009 to the date of payment. If the Resulting EBITDA does not exceed the Pro-forma Combined Initial EBITDA, then no earn-out payment shall be due from Survivorco to Seller pursuant to this Section 2.4. From and after the date of payment of the Canadian Earn-Out Amount, if any, the term Purchase Price as used in this Agreement shall include such amount.

Earn-Out Calculation. For a period of five (5) calendar years commencing 1st January 2010, the Buyer shall pay the Seller an Earn Out Payment equal to twenty percent (20%) of Net Sales of Earn Out Products that exceed £1,000,000 in each calendar year. Example shall be: Year 1 Net Sales of Earn Out Product total £900,000, no Earn Out Payment is due; Year 2 Net Sales of Earn Out Product total £1,500,000, excess is £500,000 and at 20% of the excess the Earn Out Payment would be £100,000; Year 3 Net Sales of Earn Out Product total £900,000, no Earn Out Payment is due. Earn Out Payments due under this Agreement shall be calculated and payable on an annual basis corresponding to a calendar year. The calculated Earn Out Payment for each calendar year shall be paid by the Buyer to the Seller within ninety (90) days following the end of such calendar year.

Earn-Out Calculation. (a) The Earn-Out shall be calculated in accordance with Annex 5.2 and the additional principles set out in this Section 5.2. (b) On or before the date that is ninety (90) Business Days after the end of the 12-month period starting on the Effective Date (such 12-month period, the "Earn-Out Period", and the day on which the Earn-Out Period ends, the "Earn-Out Date"), the Purchaser shall, in consultation with the Company, prepare and deliver to the Sellers' Representative: (i) the audited consolidated financial statements of the Target Group (excluding [*] and Endosane Pharmaceuticals GmbH) as of the Earn-Out Date and consisting of a balance sheet (Bilanz) and a profit and loss statement (Gewinn- und Verlustrechnung) (the "Draft Earn-Out Accounts SG"), (ii) [*] and together with the Draft Earn-Out Accounts SG, the "Draft Earn-Out Accounts) and ▇▇▇▇▇ Lovells (iii) a written calculation of the amount of the Earn-Out, if any, prepared and calculated in accordance with Annex 5.2 and the additional principles set out in this Section 5.2 and setting forth in reasonable detail all of the material elements of such calculation [*]. (c) The Draft Earn-Out Accounts shall be audited by the auditors of the Company. (d) The aggregate Earn-Out is capped at EUR 120,000,000.00 (in words: Euro one hundred and twenty million) ("Earn-Out Cap"). (e) The Earn-Out shall be reduced by the amount by which the consolidated Net Cash of the Target Group Companies (excluding Endosane Pharmaceuticals GmbH) and [*] as at the Earn-Out Date falls short of the Net Cash of Target Group Companies (excluding Endosane Pharmaceuticals GmbH [*] as at the Effective Date by more than EUR 2,000,000.00 (in words: Euro two million). For the avoidance of doubt, any debt from the Additional Financing (principal amount plus any accrued interest) which remains unpaid at the Earn-Out Date shall be considered in the consolidated Net Cash of the Target Group Companies as at the Earn-Out Date.

Earn-Out Calculation. The “Earn-Out Payment” shall be calculated as follows:

Earn-Out Calculation. The Earn-out Amounts shall be calculated as follows: (i) The Earn-out Amount payable in respect of the 2007 After-Tax Earnings (the “2007 Earn-out Amount”) shall be determined as follows: if 2007 After-Tax Earnings are (A) less than $170 Million, then the 2007 Earn-out Amount shall be zero; (B) equal to or greater than $170 Million, but less than $200 Million, then the 2007 Earn-out Amount shall be $24 Million; (C) equal to or greater than $200 Million, but less than $229 Million, then the 2007 Earn-out Amount shall be $92 Million; (D) equal to or greater than $229 Million, but less than $259 Million, then the 2007 Earn-out Amount shall be $110 Million; (E) equal to or greater than $259 Million, but less than $289 Million, then the 2007 Earn-out Amount shall be $115 Million and (F) $289 Million or greater, then the 2007 Earn-out Amount shall be $120 Million. For the avoidance of doubt, in no event shall the 2007 Earn-out Amount exceed $120 Million. (ii) The Earn-out Amount payable in respect of the 2008 After-Tax Earnings (the “2008 Earn-out Amount”) shall be determined as follows: if 2008 After-Tax Earnings are (A) less than $206 Million, then the 2008 Earn-out Amount shall be zero; (B) equal to or greater than $206 Million, but less than $281 Million, then the 2008 Earn-out Amount shall be $30 Million; (C) equal to or greater than $281 Million, but less than $362 Million, then the 2008 Earn-out Amount shall be $131 Million; (D) equal to or greater than $362 Million, but less than $448 Million, then the 2008 Earn-out Amount shall be $155 Million; (E) equal to or greater than $448 Million, but less than $540 Million, then the 2008 Earn-out Amount shall be $160 Million and (F) $540 Million or greater, then the 2008 Earn-out Amount shall be $165 Million. For the avoidance of doubt, in no event shall the 2008 Earn-out Amount exceed $165 Million. (iii) The Earn-out Amount payable in respect of the 2009 After-Tax Earnings (the “2009 Earn-out Amount”) shall be determined as follows: if 2009 After-Tax Earnings are (A) less than $250 Million, then the 2009 Earn-out Amount shall be zero; (B) equal to or greater than $250 Million, but less than $353 Million, then the 2009 Earn-out Amount shall be $44 Million; (C) equal to or greater than $353 Million, but less than $469 Million, then the 2009 Earn-out Amount shall be $178 Million; (D) equal to or greater than $469 Million, but less than $599 Million, then the 2009 Earn-out Amount shall be $209 Million; (E) equal to ...

Earn-Out Calculation. (i) On or before ninety (90) days following the end of the most recently completed Earn-Out Period, Buyer shall prepare and deliver to Parent in writing a calculation of the Company Revenue and the Earn-Out Consideration for the relevant Earn-Out Period, including reasonable detail as to the components of the calculation. The Company Revenue shall be determined by Buyer using its books and records in accordance with GAAP applied in a consistent manner and using the Methodologies with respect to such applicable Earn-Out Period, consistent with the provisions in the definition of Company Revenue set forth herein. Except as required by the immediately preceding sentence (in which case, the immediately preceding sentence shall govern), during each Earn-Out Period, no later than five days following the date on which Guarantor files a periodic report with the Securities and Exchange Commission for a quarterly or annual period ending during such Earn-Out Period, Buyer shall prepare and submit to Parent a statement setting forth, in reasonable detail, Buyer’s good faith calculation of Company Revenue for such quarterly period, prepared from the books and records of Guarantor, and shall make its personnel and the Company’s personnel reasonably available during normal business hours to respond to any reasonable inquiries Parent may have regarding such statements. (ii) In the event that Parent disagrees with Buyer’s calculation of the Company Revenue, Parent shall so inform Buyer in writing within sixty (60) days after Parent’s receipt of such calculation, setting forth the objections of Parent in reasonable detail and the position of Parent on the manner in which such objections should be resolved and the amount of the Company Revenue and/or Earn-Out Consideration to which Parent does not object (the “Parent Position”). Within ten (10) Business Days after receipt by Buyer of the Parent Position, Buyer shall inform Parent of its position on the manner in which the objections of Parent should be resolved (the “Buyer Position”). If Buyer and Parent cannot reach agreement as to any disputed matter within ten (10) Business Days following the exchange of their respective positions, then either or both of Buyer and Parent may forthwith refer the dispute to BDO USA, LLP or, if such firm is unable or unwilling to serve in such capacity, then such other jointly selected independent nationally recognized accounting firm with no existing or former business relationship with any...

Earn-Out Calculation a) Within ninety (90) days after the completion of any fiscal year of the Company ending during the Earn-Out Period, Buyer will cause the Company to prepare and deliver to the Sellers’ Representative audited financial statements, including a statement setting forth a calculation of the Company’s Net Income (each a “Net Income Statement”), for each of such fiscal years, provided that if the Earn-Out Amount is paid in full and the Earn-Out Cap has been achieved in any such fiscal year, the obligations of Buyer set forth in this Section 2.2(iii)(1)(a) shall terminate and have no further force or effect. b) Each Net Income Statement shall be prepared by an independent accountant (the “Independent Accountant”) appointed by Buyer, in Buyer’s sole and absolute discretion, and shall include a calculation of the Earn-Out Amount. The determination by the Independent Accountant of Net Income will be final, binding and conclusive upon Buyer and Sellers. Net Income for purposes of this Section 2.2(iii) shall be defined as the net income of the Company as determined by the Independent Accountant using United States generally accepted accounting principles.

Earn-Out Calculation. (i) As promptly as practicable, but in any event no later than one hundred twenty (120) days after the end of each Earn-Out Period, Buyer shall prepare and deliver, or cause its accountants to deliver, to Seller an earn-out calculation setting forth, in reasonable detail, a calculation of TTM EBITDA as of the last day of the applicable Earn-Out Period and the amount of the Earn-Out Payment. Each earn-out calculation shall be based upon the unaudited financial statements of the Business for the applicable Earn-Out Period. (ii) An earn-out calculation shall become final and binding upon the parties hereto on the day that is thirty (30) days following delivery thereof to Seller, unless Seller shall have given written notice of disagreement (an “Earn-Out Dispute Notice”) to Buyer prior to such date. The Earn-Out Dispute Notice shall specify in reasonable detail the nature of any disagreement so asserted in respect of the applicable earn-out calculation and shall contain a statement setting forth the calculation of TTM EBITDA as of the last day of the applicable Earn-Out Period and the applicable Earn-Out Payment determined by Seller to be correct.

Earn-Out Calculation. (a) SMSC shall submit to each of the Earn-Out Shareholders no later than on April 30, 2006: (i) a set of audited pro forma interim consolidated financial statements (konsolidierter Zwischenabschluss) of OASIS (the "Earn-Out Accounts"), consisting of a consolidated balance sheet (Konzernbilanz) as of February 28, 2006, 24:00 hours (the "Earn-Out Date") and a consolidated profit-and-loss statement (Konzerngewinn- und Verlustrechnung) for the period beginning March 1, 2005 and ending on the Earn-Out Date (the "Earn-Out Period"); and (ii) a calculation of the Earn-Out Revenues (as defined) and the Earn-Out Gross Margin (as defined), a determination of the extent to which the Earn-Out Targets have been achieved and a calculation of the amount of the Contingent Consideration due to each Earn-Out Shareholder on the basis of the Earn-Out Accounts (the "Earn-Out Calculation"). (b) The Earn-Out Accounts shall be prepared by SMSC and shall be audited by SMSC's auditor. The Earn-Out Calculation shall be prepared by SMSC and shall be reviewed by SMSC's auditor. The Earn-Out Accounts shall be prepared in accordance with the applicable generally accepted accounting rules and principles (Grundsatze ordnungsgema(beta)er Buchfuhrung und Rechnungslegung) in Germany ("German GAAP") in a manner consistent both in form and substance with the Financial Statements (as defined) and the Management Accounts (as defined). In particular, the same consolidation principles, capitalization and depreciation methods, election rights, valuation principles (in particular with regard to inventory) and the same line items shall be applied and used in the Earn-Out Accounts as were applied and used in the preparation of the Financial Statements and the Management Accounts, in each case to the extent they are in accordance with German GAAP. If the principles set forth in the preceding sentences are not applicable to a particular matter, such matter shall be accounted for in accordance with German GAAP applicable to companies like OASIS. For the purposes of the preparation of the Earn-Out Accounts, all sales (Umsatzerlose) generated by SMSC or any Affiliates of SMSC during the period from March 1, 2005 to February 28, 2006 which relate to the business of the OASIS Group as currently envisaged under its business plan attached hereto as Exhibit 4.3(b) shall be deemed to have been generated by OASIS. The costs and expenses of the audit of the Earn-Out Accounts and the review of the Earn-Out Calculati...