Earnout. The Earnout Amount shall be calculated, determined and paid in the following manner:
(a) Within 60 days after the end of the Earnout Period, Purchaser shall prepare in good faith and deliver to Sellers’ Representative a written statement showing in reasonable detail the calculation of Net Sales for the Earnout Period and the Earnout Amount payable, if any (the “Earnout Statement”).
(b) In the event of any objection by Sellers’ Representative with respect to the determination of the Net Sales or the Earnout Amount payable, Sellers’ Representative shall, within 60 days after its receipt of the Earnout Statement, give written notice to Purchaser of such objection showing in reasonable detail the calculation thereof (an “Earnout Dispute Notice”). Purchaser and Sellers’ Representative shall thereafter attempt to amicably resolve any disputed items set forth in such Earnout Dispute Notice. If Sellers’ Representative does not timely deliver an Earnout Dispute Notice, then the calculation of the Net Sales and the Earnout Amount as set forth in the Earnout Statement shall be deemed to have been accepted and shall be final and binding on all parties hereto.
(c) If, for any reason, Purchaser and Sellers’ Representative cannot resolve any disputed items indicated in an Earnout Dispute Notice within 30 days of the date of delivery of the Earnout Dispute Notice, then such unresolved items shall be resolved by the Referee in the manner provided in Section 2.03(c) above, mutatis mutandis, except as modified herein. The Referee shall issue a written report which shall include a revised Earnout Statement as adjusted (i) pursuant to any resolutions to objections agreed upon by Purchaser and Sellers’ Representative and (ii) pursuant to the Referee’s resolution of the unresolved objections. The Referee shall review only those matters specified in the unresolved objections and shall make no changes to the Earnout Statement, except as are required to resolve the unresolved objections. The award of the Referee shall set out the final Earnout Statement, shall be final and binding on all parties hereto, and may be enforced in any court of competent jurisdiction. The parties agree that the procedure set forth in this Section 2.06 for resolving disputes with respect to the Earnout Statement shall be the sole and exclusive method for resolving any such disputes.
(d) In connection with the preparation of the Earnout Statement, and until the final resolution of the Earnout Statement, Pu...
Earnout. (a) The Company Stockholders and the Engaged Option Holders shall be entitled to receive their pro rata portion of such number of Company Contingent Shares, fully paid and free and clear of all Liens other than applicable federal and state securities law restrictions, as set forth below upon satisfaction of any of the following conditions (each, an “Company Earnout Condition”):
(i) 7,000,000 Company Contingent Shares if the closing price of the Surviving Pubco Common Stock equals or exceeds $12.00 per share on any twenty (20) trading days in a thirty (30)-trading-day period at any time after the Closing Date and no later than 60 months following the Closing Date;
(ii) 2,250,000 Company Contingent Shares if the closing price of the Surviving Pubco Common Stock equals or exceeds $15.00 per share on any twenty (20) trading days in a thirty (30)-trading-day period at any time after the Closing Date and no later than 60 months following the Closing Date; and
(iii) 1,250,000 Company Contingent Shares if the closing price of the Surviving Pubco Common Stock equals or exceeds $18.00 per share on any twenty (20) trading days in a thirty (30)-trading-day period at any time after the Closing Date and no later than 60 months following the Closing Date.
(b) Each Company Earnout Condition will be evaluated on a stand-alone basis, without reference to any other Company Earnout Condition. If a Company Earnout Condition is satisfied, within five (5) Business Days after the last trading day in such thirty-day period, Surviving Pubco shall instruct the Exchange Agent to issue the Company Contingent Shares earned therefrom to each Company Stockholder and Engaged Option Holder in such amounts equal to each Company Stockholder’s and Employee Option Holder’s Applicable Percentage multiplied by such number of Company Contingent Shares corresponding to the applicable Company Earnout Condition (the “Earnout Instruction”), with no action being required on the part of the Company Stockholders.
(c) Until the Company Contingent Shares are issued in accordance with this Section 4.04, (i) the right to receive any Company Contingent Shares is not transferable except by operation of Law relating to descent and distribution, divorce and community property of such Company Stockholder or Engaged Option Holder, and does not constitute an equity or ownership interest in Surviving Pubco, and (ii) the Company Stockholders and Engaged Option Holders shall not have any rights as a shareholder of Su...
Earnout. (a) Sponsor hereby agrees that if, at the end of the Earn-Out Period no Earn-Out Vesting Event shall have occurred, then Sponsor shall, no later than ten (10) Business Days following the end of the Earn-Out Period, contribute, transfer, assign, convey and deliver to PubCo, and PubCo shall acquire and accept from Sponsor all of Sponsor’s right, title, and interest in, to and under, the Earn-Out Shares, for nil consideration (such Earn-Out Shares so contributed, transferred assigned, conveyed and delivered to PubCo by Sponsor, the “Earn-Out Forfeiture Shares”).
(b) PubCo and Sponsor acknowledge and agree that (i) each Earn-Out Forfeiture Share, when so contributed, transferred assigned, conveyed and delivered to PubCo by Sponsor in accordance with Section 7.2(a), shall be and be deemed to have been (x) surrendered and forfeited to PubCo by Sponsor for nil consideration and (y) cancelled by PubCo immediately upon surrender and forfeiture and cease to be issued and outstanding; and (ii) any other PubCo Shares which are not Earn-Out Forfeiture Shares shall continue to be issued and outstanding and owned by Sponsor for its own account.
(c) In addition to and not in place of the transfer restrictions set forth in Article V (and, for the avoidance of doubt, not limited by the exceptions or conditions set forth therein), subject to the consummation of the Initial Merger and the Acquisition Merger, Sponsor covenants and agrees that it shall not, during the period commencing on the Acquisition Effective Time and ending on the earlier to occur of (i) an Earn-Out Vesting Event or (ii) the last day of the Earn-Out Period (the “Earn-Out Restricted Period”), effect, undertake, enter into or publicly announce any Transfer with respect to any Earn-Out Shares. For the avoidance of doubt, Sponsor shall retain all of its rights as a shareholder of PubCo with respect to the Earn-Out Shares during the Earn-Out Restricted Period, including, without limitation, the right to vote any Earn-Out Shares that are entitled to vote, the right to appoint a proxy with respect to any vote of any Earn-Out Shares, and the right to receive any dividends or distributions in respect of such Earn-Out Shares. The foregoing restrictions in this Section 7.2(c) shall not apply to (i) Transfers of Earn-Out Shares in the event of completion of an Unqualified Liquidation Event; or (ii) Transfers required by Law. If any Transfer is made contrary to the provisions of this Section 7.2(c), such purported Tra...
Earnout. (a) As part of the Purchase Price, the Buyer shall pay or cause to be paid to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid.
(b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million).
(c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9.
(d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accorda...
Earnout. (a) Pursuant to the Merger, there shall be issued to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) (the “Earnout Shares”).
(b) The Earnout Shares shall be 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 five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d).
(ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d).
(c) For the avoidance of doubt, if the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d).
(d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto.
(e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change.
(f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of D...
Earnout. (i) At the Acquisition Merger Effective Time, (A) the Company shall issue and deposit with the Escrow Agent a number of New Company Units equal to the Maximum Seller Earnout (the “Earnout Units”) and (B) Pubco shall issue and deposit with the Escrow Agent (x) a number of shares of Pubco Class B Common Stock equal to the Maximum Seller Earnout (the “Seller Earnout Shares”) and (y) a number of shares of Pubco Class A Common Stock equal to the sum of (I) Maximum Sponsor Earnout and (II) the Maximum Xxxxxxxxx Earnout (collectively, the “Pubco Earnout Shares” and, together with the Seller Earnout Shares, the “Earnout Shares”), in each case, to be held in escrow in accordance with the terms of the Escrow Agreement and this Section 3.01(c).
(ii) Upon receipt of the Earnout Shares and Earnout Units, the Escrow Agent shall place the Earnout Shares and Earnout Units into one or more escrow accounts in accordance with the Escrow Agreement, and such Earnout Shares and Earnout Units shall be earned, released and delivered as follows:
(A) On the occurrence of Earnout Triggering Event I, Pubco and the Company shall cause the Escrow Agent to release to each Earnout Participant (1) a number of New Company Units equal to (x) fifteen million (15,000,000) (the “First Earnout Units”) multiplied by (y) its Earnout Pro Rata Portion and (2) a number of shares of Pubco Class B Common Stock equal to (x) fifteen million (15,000,000) (the “First Earnout Shares”) multiplied by (y) its Earnout Pro Rata Portion.
(B) On the occurrence of Earnout Triggering Event II, Pubco and the Company shall cause the Escrow Agent to release to each Earnout Participant (1) a number of New Company Units equal to (x) fifteen million (15,000,000) (the “Second Earnout Units”) multiplied by (y) its Earnout Pro Rata Portion and (2) a number of shares of Pubco Class B Common Stock equal to (x) fifteen million (15,000,000) (the “Second Earnout Shares”) multiplied by (y) its Earnout Pro Rata Portion.
(C) On the occurrence of Earnout Triggering Event III, Pubco and the Company shall cause the Escrow Agent to release to each Earnout Participant (1) a number of New Company Units equal to (x) ten million (10,000,000) (the “Third Earnout Units”) multiplied by (y) its Earnout Pro Rata Portion and (2) a number of shares of Pubco Class B Common Stock equal to (x) ten million (10,000,000) (the “Third Earnout Shares”) multiplied by (y) its Earnout Pro Rata Portion.
(D) Promptly following the filing of Pubco’s Form 10-K w...
Earnout. (a) Except as set forth in Section 2.5(i), then at the time specified in Section 2.5(b), Section 2.5(d), Section 2.5 (f) , and Section 2.5(h) below, as applicable, the Purchaser shall pay, as part of the Purchase Price due hereunder, to the Members in the proportions set forth on Schedule 2.2(a), an earnout payment or earnout payments, if earned, pursuant to the formula below (each or together hereinafter referred to as the “Earnout Payment”). It is the intention of the parties that in calculating each Earnout Payment, the Company be evaluated as it existed prior to the purchase herein contemplated, and therefore, all expenses attributed in any way to Purchaser’s overhead shall be excluded from the calculation of EBITDA. Furthermore, if Purchaser causes the Company to incur one or more expenses (not related to Purchaser’s overhead) that are not consistent with the past practices of the Company consistently applied, including but not limited to, opening a new office, developing a new line of business, or developing a new product line (each an “Extraordinary Expense” and collectively “Extraordinary Expenses ”), then provided that Fxxxxxx and Diamond remain employed by the Company (a) Purchaser shall, prior to incurring the expense, discuss such action with the Fxxxxxx and Diamond and (b) once the aggregate total of all Extraordinary Expenses exceeds (i) $75,000 in the aggregate during the First Calculation Period, (ii) $150,000 in the aggregate during the Second Calculation Period, (iii) $150,000 in the aggregate during the Third Calculation Period, or (iv) $75,000 in the aggregate during the Fourth Calculation Period, promptly notify Fxxxxxx and Diamond in writing that such thresholds have been exceeded. Fxxxxxx and Diamond, acting jointly, shall have ten (10) days from the date of each such notice to object in writing to some or all of such Extraordinary Expenses. The Extraordinary Expenses to which Fxxxxxx and Diamond timely and properly object shall be referred to herein as the “Objectionable Expenses” and all other Extraordinary Expenses shall be referred to as “Accepted Expenses.” Any Accepted Expenses shall be subtracted from the total of the Extraordinary Expenses and thereafter each time the Purchaser causes the Company to incur one or more additional Extraordinary Expenses that, when added to the Objectionable Expenses for such period, cause any of the thresholds set forth above to be exceeded, the Purchaser shall again promptly notify Fxxxxxx and ...
Earnout. (1) Additional purchase price ("Earnout") shall be payable to Sellers as set forth below in cash in an amount equal to (a) two times the amount by which earnings (without any deduction or expense for accrued vacation and sick pay) before interest, taxes, depreciation and amortization attributable to the Business ("Post-Closing EBITDA") for the first full 12 months after the Closing Date ("First Anniversary Earnout Period") exceed $2,501,094; plus (b) two times the amount by which Post-Closing EBITDA for the second 12 months after the Closing Date ("Second Anniversary Earnout Period") exceeds Post-Closing EBITDA for the First Anniversary Earnout Period. Buyer shall pay the Earnout attributable to the First Anniversary Earnout Period, if any, within 60 days after the first anniversary of the Closing Date and shall pay the Earnout attributable to the Second Anniversary Earnout Period, if any, within 60 days after the second anniversary of the Closing Date unless Sellers dispute Buyer's statement of Post-Closing EBITDA or the Earnout delivered pursuant to Section 4(b)(2), in which case Buyer shall pay the applicable Earnout, if any, within 10 days after resolution of such dispute. The Earnout, if any, shall be paid to Sellers by wire transfer to accounts designated by Sellers or by cashier's checks drawn on a federally insured Florida lending institution. Post-Closing EBITDA shall be calculated in accordance with generally accepted accounting principles ("GAAP") on the accrual basis of accounting and in a manner consistent with the procedures set forth on Schedule 4(b).
(2) Within 30 days after (i) the first anniversary of the Closing Date in the case of the First Anniversary Earnout Period and (ii) the second anniversary of the Closing Date in the case of the Second Anniversary Earnout Period, Buyer shall deliver to Sellers a statement setting forth the applicable calculation of Post-Closing EBITDA for the First Anniversary Earnout Period or the Second Anniversary Earnout Period, as applicable, and the amount of the Earnout, if any, resulting from such calculation. If Sellers dispute or question Buyer's statement of Post-Closing EBITDA or the Earnout, Sellers shall so notify Buyer within 30 days after receipt of the statement. If Sellers do not notify Buyer within 30 days after receipt of the statement, the statement shall be deemed accepted and payments pursuant to this Subsection shall be immediately made based on the statement. If Sellers shall timely disp...
Earnout. (a) If and to the extent earned in accordance with this Section 2.06 and Annex B to this Agreement, Sellers shall be entitled to an earnout payment (the “Earnout Payment”) from Buyer. The Earnout Payment for all purposes under this Agreement shall be calculated in accordance with Annex B.
(b) As promptly as practicable, but in no event later than ninety (90) days after the end of the Earnout Period, Buyer shall prepare and deliver to the Sellers’ Representative a statement (the “Earnout Statement”) setting forth Buyer’s good faith calculation of EBITDA and the Earnout Payment, if any. After receipt of the Earnout Statement, the Sellers’ Representative shall have thirty (30) days (the “Earnout Review Period”) to review the Earnout Statement. During the Earnout Review Period, the Sellers’ Representative and Sellers’ Accountants shall have reasonable access to the books and records of the Company, the personnel of, and work papers prepared by Buyer and/or Buyer’s Accountants, to the extent that they relate to the Earnout Statement, as the Sellers’ Representative may reasonably request for the purpose of reviewing the Earnout Statement and to prepare an Earnout Objection Notice (defined below), provided, that such access shall be in a manner that does not interfere with the business operations of Buyer or the Company.
(c) On or prior to the last day of the Earnout Review Period, the Sellers’ Representative may object to the Earnout Statement by delivering to Buyer a written notice setting forth the Sellers’ Representative’s objections to the Earnout Statement in reasonable detail, indicating each disputed item or amount and the basis for the Sellers’ Representative’s disagreement therewith (the “Earnout Objection Notice”). For avoidance of doubt, all other matters with respect to, and all other components of, the Earnout Statement not identified in the Earnout Objection Notice as an item or amount in dispute will be binding and conclusive on the Parties for all purposes under this Agreement and not subject to further dispute or challenge absent manifest error. If the Sellers’ Representative fails to deliver the Earnout Objection Notice before the expiration of the Earnout Review Period, the Earnout Statement and all components thereof (including Buyer’s calculation of the Earnout Payment) will be deemed final and binding on the Parties for all purposes under this Agreement and not subject to further dispute or challenge. If the Sellers’ Representative delivers...
Earnout. (a) Following the Closing, and as additional contingent consideration for the Mergers and the other Transactions, within ten (10) Business Days after the occurrence of an Earnout Event, PubCo shall issue or cause to be issued to such shareholders of the Company (the “Earnout Participants,” as listed on the Schedule I attached hereto) pro rata the following additional shares of PubCo Ordinary Shares (which shall be equitably adjusted for share subdivisions, share consolidations, share dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to PubCo Ordinary Shares occurring on or after the date hereof, the “Earnout Shares” as set forth on Schedule I), upon the terms and subject to the conditions set forth in this Agreement and the other Ancillary Agreements:
(i) upon the occurrence of Earnout Event I, a one-time issuance of 15,000,000 Earnout Shares; and
(ii) upon the occurrence of Earnout Event II, a one-time issuance of 20,000,000 Earnout Shares.
(b) For the avoidance of doubt, the Earnout Participants shall be entitled to receive Earnout Shares upon the occurrence of each Earnout Event.
(c) No Earnout Shares issuable pursuant to this Section 2.8, if any, shall be released to any Company Shareholder who is required to file notification pursuant to the HSR Act or under any applicable antitrust or other competition Laws of any non-U.S. jurisdictions (collectively, “Foreign Antitrust Laws”) until any applicable waiting period pursuant to the HSR Act or Foreign Antitrust Laws has expired or been terminated (provided, that any such Company Shareholder has notified PubCo of such required filing pursuant to the HSR Act or Foreign Antitrust Laws in connection therewith following reasonable advance notice from PubCo of the reasonably anticipated issuance of Earnout Shares).
