Earn-Out Shares. (i) Within five (5) Business Days of a Final Determination Date with respect to the Combined Revenue, the Buyer shall issue or cause to be issued 2,000,000 Perk Common Shares (the “Earn-Out Shares”) to the Seller, if in the calendar year commencing on January 1, 2016 (the “2016 Calendar Year”) or the calendar year commencing on January 1, 2017 (the “2017 Calendar Year” and together with the 2016 Calendar Year, collectively, the “Calendar Years” or each individually, a “Calendar Year”) the Combined Revenue is at least $130,000,000. For greater certainty, if the Seller is entitled to receive the Earn-Out Shares based on the Combined Revenue generated in the 2016 Calendar Year, then the Seller shall not have any further entitlements pursuant to this paragraph (b) in respect of the 2017 Calendar Year.
(ii) For purposes of this paragraph (b), “Combined Revenue” shall mean, without duplication, (A) the aggregate revenue but including only 50% percent of the revenue reportable from barter transactions under International Financial Reporting Standards (the aggregate revenues as so adjusted, “Adjusted Revenue”) of the Business for the 2016 Calendar Year or the 2017 Calendar Year, as applicable, together with the combined business as presently conducted by the Buyer and its Subsidiaries as of the date of the Term Sheet for such years, plus (B) 100% (but, with respect to the entities and businesses set forth on Schedule 2.1(b)(ii), only 25%) of the Adjusted Revenue of any business of any Subsidiary or business of the Buyer acquired following the date of the Term Sheet for the period commencing on the closing date of the acquisition of such Subsidiary or business (the “Acquisition Date”) and continuing until the earlier to occur of (x) the first anniversary of the Acquisition Date; and (y) December 31, 2016 (in the case of a calculation in respect of the 2016 Calendar Year) or December 31, 2017 (in the case of a calculation in respect of the 2017 Calendar Year) (the “Post Closing Trailing Period”), less (C) the Adjusted Revenue of such acquired Subsidiary or business during the corresponding trailing period prior to the Acquisition Date, which period shall correspond to the Post Closing Trailing Period both in number of months and actual calendar months included. An illustrative example of this calculation is attached to this Agreement as Exhibit F.
Earn-Out Shares. (a) As further described in Section 2.5(c), below Sellers collectively shall receive Parent Company Stock valued at the amount, if any, in which (i) the product of (x) nine (9) times (y) the 2014 Adjusted EBITDA of Sellers and Purchaser, collectively, on a combined and consolidated basis exceeds (ii) Fifty Five Million and 00/100 Dollars ($55,000,000.00) (the dollar amount under this Section 2.5(a) shall be referred to as the “Earn Out Amount”), in an amount not to exceed Seven Million (7,000,000) shares of Parent Common Stock.
(b) Within ten (10) business days after filing with the Securities and Exchange Commission (“SEC”) its quarterly report on Form 10-Q for the third quarter of its 2015 fiscal year, Purchaser shall prepare and deliver to Sellers' Representative a written report (the “Purchaser’s Adjusted EBITDA Report”) setting forth its final calculation of the 2014 Adjusted EBITDA and the resulting Earn Out Amount, along with supporting documentation and the basis for determining the same, including financial statements for Sellers for the period beginning on January 1, 2014 and ending on December 31, 2014. Purchaser’s Adjusted EBITDA Report shall be prepared in accordance with GAAP. In the event that Sellers object to any of the calculations set forth in the Purchaser’s Adjusted EBITDA Report, Sellers' Representative may, not later than forty-five (45) calendar days after receipt of the Purchaser’s Adjusted EBITDA Report, deliver a report thereon (the “Sellers’ Adjusted EBITDA Report”) to Purchaser prepared by Sellers’ independent accounting firm. During such forty-five (45) day period, Purchaser shall make reasonably available during normal business hours to Sellers’ accounting firm and other agents such documents and information as may be requested by Sellers’ accounting firm and other agents to prepare the Sellers’ Adjusted EBITDA Report. The Sellers’ Adjusted EBITDA Report shall list all of the items included in the Purchaser’s Adjusted EBITDA Report, if any, to which Sellers take exception and its accounting firm’s proposed adjustment and rationale. If Sellers' Representative (i) delivers Sellers' written acceptance of the Purchaser’s Adjusted EBITDA Report, or (ii) fails to deliver to Purchaser the Sellers’ Adjusted EBITDA Report within forty-five (45) calendar days following Sellers’ Representative's receipt of the Purchaser’s Adjusted EBITDA Report, Sellers shall automatically be deemed to have accepted the Purchaser’s Adjusted EBITDA Repor...
Earn-Out Shares. On the occurrence of each Milestone (or part thereof as applicable), Acquiror shall issue to those Contributors, in accordance with their respective Pro Rata Percentage, on or before the 2nd Business Day following the relevant Milestone Determination Date, such number of Class B Shares (in each case, “Earn-out Shares”) as shall be determined by dividing the Milestone Consideration (or where some, but not all, of the sub-Milestone’s in the relevant fiscal quarter are achieved, such lesser potion of the Milestone Consideration as is determined in accordance with Schedule II) by (10 multiplied by the Current Acquiror Topco Share Price); provided however that, in no instance shall Acquiror be required to issue Earn-out Shares if, as a result of such issuance, the aggregate number of Class B Shares issued pursuant to Section 2.1 (including for clarity any and all Earn-out Shares) would exceed 3,280,650 (the “Earn-out Share Maximum”), in which case, Acquiror shall, at its option, either (x) issue such lesser number of Earn-out Shares to Contributors and pay to Contributors, in accordance with their respective Pro Rata Percentage, an amount in cash equal to the value of the Earn-Out Shares in excess of the Earn-out Share Maximum that would have otherwise been issuable (determined with reference to the Current Acquiror Topco Share Price), or (y) take such further action, including (but not limited to) the calling of and solicitation of proxies to obtain the requisite shareholder vote in connection with a special meeting of the shareholders of Acquiror and/or Acquiror Topco, as may be necessary or advisable pursuant to the rules and regulations of the NEO Exchange, the provisions of the governing documents of Acquiror and Acquiror Topco, and/or applicable Law, to seek approval to issue such number of Earn-out Shares in excess of the Earn-out Share Maximum; provided further, that if a particular Milestone has not been achieved on or prior to the end of the quarter immediately following the quarter in respect of which such Milestone is scheduled to be achieved pursuant to Schedule II, Acquiror’s obligation to issue Class B Shares on the occurrence of the applicable Milestone shall expire and the Contributors shall cease to have any rights with respect thereto.
Earn-Out Shares. (a) In the case of Earn-out Shares issued in respect of shares of HoldCo Common Stock held immediately prior to the consummation of the Stock Split pursuant to Section 2.2(e), the allocation of Earn-out Shares among the First Target Earn-out Shares, the Second Target Earn-out Shares and the Third Target Earn-out Shares shall be calculated in accordance with Section 2.10(b) as percentages of the aggregate number of such Earn-out Shares issued to each holder thereof.
(b) Subject to Section 2.10(a) and the last sentence of Section 2.2(e), the Earn-out Shares shall be composed as follows: (i) 20% of the applicable Earn-out Shares shall be subject to the vesting conditions specified in Section 2.10(c)(i) (the “First Target Earn-out Shares”), (ii) an additional 30% of the applicable Earn-out Shares shall be subject to the vesting conditions specified in Section 2.10(c)(ii) (the “Second Target Earn-out Shares”), and (iii) the remaining 50% of the applicable Earn-out Shares shall be subject to the vesting conditions set forth in Section 2.10(c)(iii) (the “Third Target Earn-out Shares”).
(c) The Earn-out Shares shall be unvested at issuance and subject to the following vesting conditions:
(i) If, at any time during the period commencing on the Closing Date and ending on the date that is three years after the Closing Date (the “Earn-out Period”), the HoldCo Trading Price is greater than or equal to $12.50 for any 20 Trading Days within any period of 30 consecutive Trading Days, the First Target Earn-out Shares shall immediately vest and no longer be subject to forfeiture as provided in Section 2.10(e).
(ii) If, at any time during the Earn-out Period, the HoldCo Trading Price is greater than or equal to $15.00 for any 20 Trading Days within any period of 30 consecutive Trading Days, the Second Target Earn-out Shares shall immediately vest and no longer be subject to forfeiture as provided in Section 2.10(e).
(iii) If, at any time during the Earn-out Period, the HoldCo Trading Price is greater than or equal to $17.50 for any 20 Trading Days within any period of 30 consecutive Trading Days, the Third Target Earn-out Shares shall immediately vest and no longer be subject to forfeiture as provided in Section 2.10(e).
(d) For the avoidance of doubt, if the vesting conditions set forth in more than one of Section 2.10(c)(i), Section 2.10(c)(ii) and Section 2.10(c)(iii) have been satisfied at any time, then all of the Earn-out Shares subject to such satisfied vesting condit...
Earn-Out Shares. (a) Subject to, and conditioned upon the occurrence of and effective immediately after the First Merger Effective Time, (a) the Retained Share Percentage of the Company Post-Closing Common Shares issued to the Sponsor upon the conversion of Pathfinder Class B Shares as a result of the First Merger (rounded up to the nearest whole share) shall not be subject to the provisions set forth in this Section 4 (such Company Post-Closing Common Shares, the “Retained Shares”) and (b) the remaining Company Post-Closing Common Shares (other than, for the avoidance of doubt, the Retained Shares) issued to the Sponsor upon the conversion of Pathfinder Class B Shares as a result of the First Merger (rounded down to the nearest whole share) shall be subject to the provisions set forth in this Section 4 (such Company Post-Closing Common Shares, the “Earn-Out Shares”).
(b) Subject to, and conditioned upon the occurrence of and effective immediately after the First Merger Effective Time, the Earn-Out Shares shall be unvested and subject to the restrictions and forfeiture provisions set forth in this Section 4. The Earn-Out Shares shall vest and become free of the provisions set forth in this Section 4 as follows: (i) with respect to one-third of the Earn-Out Shares, the first day on which the Stock Price is equal to or greater than $12.50 per share (such price, as may be adjusted from time to time pursuant to this Section 4, the “First Trigger Price”) for at least twenty out of thirty consecutive Trading Days during the period beginning on the Vesting Commencement Date and ending on the fifth (5th) anniversary of the Closing Date (as such date may be extended pursuant to this Section 4, the “Earn-Out End Date”), (ii) with respect to one-third of the Earn-Out Shares, the first day on which the Stock Price is equal to or greater than $15.00 per share (such price, as may be adjusted from time to time pursuant to this Section 4, the “Second Trigger Price”) for at least twenty out of thirty consecutive Trading Days during the period beginning on the Vesting Commencement Date and ending on the Earn-Out End Date, and (iii) with respect to one-third of the Earn-Out Shares, the first day on which the Stock Price is equal to or greater than $17.50 per share (such price, as may be adjusted from time to time pursuant to this Section 4, the “Third Trigger Price” and together with the First Trigger Price and the Second Trigger Price, collectively, the “Trigger Prices”) for at least twenty...
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 below) for any year during the two (2) year period commencing January 1, 2005 and expiring December 31, 2006, Executive shall have the right to receive on March 31 of the immediately following calendar year, the applicable ratable portion of 33,333,333 shares of restricted common stock of ACT (priced at $.01 per share, or $333,333 in the aggregate), to be earned at the end of each such year at the rate of 50% for each 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 PMIC is terminated for "cause" by PMIC (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 PMIC 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 her 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 to receive, after accounting for such adjustment, 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 PMIC prior to the expiration of the initial Employment Period without cause (as contemplated by Section 6.2 of this Agreement), Executive terminates this Agreement for Good Reason (as contemplated by Section 6.3 of this Agreement...
Earn-Out Shares. 7.1 The Consultant shall be issued, on execution of this Agreement, 750,000 earn-out shares. The Earn-Out Shares shall be held in the custody of the Company or its designee and shall be released to the Consultant on the basis of 10% of the original number of Earn-Out Shares on each anniversary of this Agreement. Notwithstanding that the shares are held in custody and are not released to the Consultant, all voting and dividend rights in respect of the Earn-Out Shares shall accrue to the Consultant and he shall be entitled to exercise such rights and receive such benefits in respect of the Earn-Out Shares.
7.2 In the event of termination of this Agreement, any Earn-Out Shares not released, or scheduled to be released within six (6) months shall be returned to the Company for cancellation and the Consultant shall have no further rights in respect of such shares. The Consultant shall execute any stock powers or other documents necessary to give effect to such cancellation and hereby appoints the Company as his attorney for such purposes.
Earn-Out Shares. In addition to the Stock Consideration, Chaparral Stockholders shall be entitled to up to an additional: (1) fifteen million (15,000,000) shares of Parent Common Stock, which includes the Escrow Shares (the “Share Price Earn-Out Shares”), and (2) five million (5,000,000) shares of Parent Common Stock (the “EBITDA Earn-Out Shares” and together with the Share Price Earn-Out Shares, the “Earn-Out Shares”) in the event Parent achieves certain earn-out triggers, defined in terms of a combination of criteria as follows:
Earn-Out Shares. The Company shall use its reasonable efforts --------------- to amend all acquisition agreements to which it or one of its subsidiaries is a party and that provide for the future issuance of Company Shares or shares of capital stock of a subsidiary ("Subsidiary Shares") as deferred consideration, purchase price adjustment or otherwise, to allow for the issuance of Parent Shares in lieu of Company Shares or Subsidiary Shares in an amount equal to, (i) with respect to the Company Shares, the number of Company Shares otherwise issuable, multiplied by the Exchange Ratio, and (ii) with respect to the Subsidiary Shares, the number of Subsidiary Shares otherwise issuable, multiplied by a factor that appropriately reflects the exchange ratio or other valuation factor used in the acquisition of the respective subsidiary by the Company.
Earn-Out Shares. 6.01 Additional shares of ATI $.0001 par value common stock (hereinafter referred to as the "Earn Out Shares") shall be issued to Xxxxxx up to a total of 2,000,000 additional shares to the extent that any of the following levels of Gross Revenues are achieved by Nurescell AG in any of the five full calender years following the date of this Agreement: Gross Revenues Additional Shares -------------- ----------------- Over $5 Million but less than $6 Million 200,000 Over $6 Million but less than $7.5 Million 400,000 Over $7.5 Million but less than $10 Million 666,000 Over $10 Million 1,000,000
