Earnout Amount. At Seller’s option:
(i) the Earnout Amount shall be paid by Buyer to Seller in three (3) equal annual installments, with the first installment (the “First Earnout Payment”) to be paid within ten (10) Business Days after the Earnout Amount becomes final and binding in accordance with Section 1.11, the second installment (the “Second Earnout Payment”) to be paid on the one (1) year anniversary of the date on which the Earnout Amount becomes final and binding in accordance with Section 1.11; and the third installment (the “Third Earnout Payment”) to be paid on the two (2) year anniversary of the date on which the Earnout Amount becomes final and binding in accordance with Section 1.11; or
(ii) Buyer shall pay to Seller the Earnout Amount in a single lump sum payment within ten (10) Business Days after the Earnout Amount becomes final and binding in accordance with Section 1.11 if Seller provides written notice to Buyer within thirty (30) days after the end of the Earnout Period that Seller elects to receive such lump sum payment; provided, however, that the amount of such lump sum payment shall be determined by discounting the Earnout Amount to present value based on the three installment payments set forth in Section 1.7(c)(i) as of the end of the three (3) year anniversary of the Closing Date using a fifteen percent (15%) discount rate.
(iii) In the event Seller timely provides an Earnout Objections Statement as contemplated in Section 1.11, only the excess of the Earnout Amount claimed by Seller in its Earnout Objections Statement over that reported in the Earnout Report shall be deemed in dispute, and Buyer shall proceed to pay the undisputed portion on the schedule specified above in this Section 1.7(c).
Earnout Amount. The Earnout Amount is 1,560,760 Parent Shares (the “Earnout Amount”). The Earnout Amount shall be earned when Parent or its Affiliates or a Licensee, acquirer or other transferee of Parent (collectively “Milestone Obligors”) complete an aggregate of two thousand five hundred (2,500) Commercial Tests in the United States no later than six (6) years after the Closing Date (“Earnout Milestone”). Subject to the preceding sentence, Parent shall pay the Earnout Amount by issuing such shares and then distributing such shares in accordance with Sections 1.6 and 1.10. Parent shall cause such distribution to occur within thirty (30) days of the date the Earnout Amount is earned (the “Earnout Amount Payment Date”). The Earnout Amount will be subject to set-off or reduction for payment of Losses determined to be owed to the Parent Indemnified Parties that are otherwise payable pursuant to Section 7.3(b)(y)(ii) (and the limitations set forth therein) prior to the Earnout Amount Payment Date.
Earnout Amount. Seller shall be entitled to a 2021 Earnout Amount if the Business EBITDA achieved by the Business in the twelve (12)-month period ending on December 31, 2021 (the “2021 Earnout Period” and the Business EBITDA during such period, the “2021 EBITDA”) exceeds the 2020 EBITDA. The “2021 Earnout Amount,” if any, shall equal the product of ten (10) multiplied by the amount by which the 2021 EBITDA exceeds the 2020 EBITDA; provided, however, that (i) if the 2020 EBITDA is less than the Base EBITDA, the 2021 Earnout Amount shall be equal to the product of ten (10) multiplied by the amount by which the 2021 EBITDA exceeds the Base EBITDA and (ii) if the 2020 EBITDA was greater than $22,466,667, then the 2021 Earnout Amount shall be equal to the product of ten (10) multiplied by the amount by which the 2021 EBITDA exceeds $22,466,667; provided, further, that the 2021 Earnout Amount shall in no event exceed $30,000,000. For the avoidance of doubt, if the 2021 EBITDA is less than (x) the lesser of $22,466,667 and the 2020 EBITDA or (y) the Base EBITDA, then the Seller shall not be entitled to any 2021 Earnout Amount. The 2021 Earnout Amount shall be payable in cash.
Earnout Amount. The “Earnout Payment” (if any) shall be calculated pursuant to the formula and process set forth on Schedule 2.14 and shall be paid by wire transfer of immediately available funds to the Paying Agent on behalf of the Equityholders within (15) Business Days of the determination of such amount (as provided in Schedule 2.14) for further distribution to the Equityholders. The terms of Schedule 2.14 are incorporated by reference into this Section 2.14 and shall be binding on the parties.
Earnout Amount. (a) For purposes of this Agreement:
Earnout Amount. The Aggregate Earnout Amount shall mean the number determined by multiplying 1.6 by either (i) the EBITDA of the Company during calendar year 1999 or (ii) in the event that the Subsequent Closing Date is accelerated pursuant to Section 1.1(a)(ii) above, the annualized EBITDA of the Company over the six full calendar months preceding the date of the Change of Control Transaction of Buyer. For purposes of this Agreement, EBITDA shall mean the earnings of the Company before interest, taxes, depreciation and amortization all as determined in accordance with generally accepted accounting principles ("GAAP") by the outside independent auditors of Buyer.
Earnout Amount. (a) The Premium shall include any amount payable by the Purchaser to the Sellers pursuant to this Section 3.6. The Purchaser shall pay to the Sellers up to an aggregate of $1,500,000 based on the aggregate amount of Deposit Liabilities acquired by Purchaser which are booked to any branch of Purchaser as of the Earnout Determination Dates (the “Earnout Amount”). The Earnout Amount will be calculated as follows: $77,000,000 The first anniversary of the Closing Date $ 750,000 $72,000,000 The first anniversary of the Closing Date $ 500,000 $69,000,000 The first anniversary of the Closing Date $ 250,000 $70,000,000 The second anniversary of the Closing Date $ 750,000 $65,000,000 The second anniversary of the Closing Date $ 500,000 $60,000,000 The second anniversary of the Closing Date $ 250,000
(b) Within thirty (30) days following the Earnout Determination Dates, the Purchaser will deliver to the Sellers a certificate, signed by an officer of Purchaser, certifying as to the amount of Deposit Liabilities which are booked to any branch of Purchaser and the determination of the Earnout Amount. The Purchaser will grant the Sellers reasonable access to all books, records and other data related to the Deposit Liabilities during regular business hours upon reasonable prior notice for the purpose of verifying the determination of the Earnout Amount. Subject to the resolution of any disputed amount, the Earnout Amount will be paid by the Purchaser to Sellers not later than sixty (60) days following the Earnout Determination Dates. The Sellers shall, within ten (10) days after delivery of the certificate, notify the Purchaser in writing of any disagreement with the calculation of the Earnout Amount, and upon agreement by the Purchaser regarding the Sellers’ requested adjustment, an appropriate adjustment to the Earnout Amount shall be made thereto. If the Purchaser does not agree to any such adjustment within ten (10) days after receipt of Sellers’ notice, then the portion of the Earnout Amount (if any) that is not subject to any dispute shall be paid as scheduled, and the disputed elements shall be submitted to binding resolution by a nationally recognized independent accounting firm agreed to by the Purchaser and the Sellers. Any remaining Earnout Amount will be paid by the Purchaser to the Sellers promptly after the independent accountant’s determination.
(c) For purposes of determining the Earnout Amount, Purchaser shall use reasonable best efforts to maintain and p...
Earnout Amount. The Earnout Amount shall be equal to (a) actual EBITDA for the Earnout Period multiplied by six, minus (b) the Up-Front Purchase Price; provided, however, (i) if actual EBITDA for the four months ended December 31, 2001 (the period is hereinafter referred to as the “2001 Period,” and the amount is hereinafter referred to as the “2001 EBITDA”) is less than $1,900,000, the Earnout Amount shall be reduced by an amount equal to six multiplied by the amount by which 2001 EBITDA is less than $1,900,000 or (ii) if 2001 EBITDA is greater than $2,500,000, the Earnout Amount shall be increased by an amount equal to six multiplied by the amount by which 2001 EBITDA is greater than $2,500,000. Notwithstanding the foregoing, the Earnout Amount shall not exceed $60,000,000 less the Up-Front Purchase Price. By way of example only, Exhibit B attached hereto, sets forth example calculations for four scenarios.
Earnout Amount. As part of the Merger Consideration, Parent will pay the Earnout Amount in accordance with the provisions of this Section 1.7(b).
(i) The Earnout Amount will be determined as follows:
a) if the Company Revenues for the Measurement Period are greater than or equal to $87,800,000, then the Earnout Amount will be $10,000,000.
b) if the Company Revenues for the Measurement Period are greater than or equal to $70,240,000, but less than $87,800,000, then the Earnout Amount will be equal to (1) a fraction, the numerator of which is the excess of the Company Revenues over $70,240,000, and the denominator of which is $17,560,000, multiplied by (2) $10,000,000.
c) if the Company Revenues for the Measurement Period are less than $70,240,000, then the Earnout Amount will be $0.
(ii) Within fifteen (15) business days following the completion of the Measurement Period (i.e., on or before October 19, 2007), Parent will provide the Shareholder Representative with a certificate setting forth the Company Revenues for the Measurement Period and the calculation of the Earnout Amount (the “Certificate”).
(iii) Parent will provide the Shareholder Representative and its agents and representatives with reasonable access (with at least 48 hours prior notice) to the personnel, books and records of Parent and the Surviving Corporation to assist the Shareholder Representative in its review of Parent’s calculation of the Company Revenues.
(iv) The Shareholder Representative shall notify Parent in writing (the “Dispute Notice”) within thirty (30) days after receiving Parent’s calculation of the Company Revenues or the Earnout Amount if the Shareholder Representative disagrees with Parent’s calculation of the Company Revenues or the Earnout Amount, and such notice (if given) shall set forth in reasonable detail the basis for such dispute and the dollar amounts involved and the Shareholder Representative’s calculation of the Company Revenues and Earnout Amount.
(v) If no Dispute Notice is given within such thirty (30) day period, then Parent’s calculation of the Earnout Amount shall be final and binding upon the Parties and the Company Shareholders.
(vi) Upon receipt of a Dispute Notice, Parent and the Shareholder Representative shall negotiate in good faith to resolve any disagreement with respect to the calculation of the Company Revenues. If Parent and the Shareholder Representative are unable to agree with respect to the calculation of the Company Revenues within thirty (30) days aft...
Earnout Amount. Seller shall be entitled to receive an amount equal to ten percent (10%) of the excess of Purchaser's EBITDA related to the Business, if any, that exceeds $15,000,000.00 in each of fiscal years 2006 and 2007, subject to the terms and provisions of this Agreement (the "Earnout Amount"). In each of fiscal year 2006 and 2007, the Earnout Amount, if any, shall be determined by Purchaser in accordance with generally accepted accounting principles ("GAAP") for that fiscal year and confirmed by its independent public accountants within 90 days following the end of such fiscal year. Thus, for example, if Purchaser's EBITDA related to the Business in fiscal year 2006 is $20,000,000.00, then Seller shall be entitled to receive an Earnout Amount equal to $500,000.00 ([$20,000,000.00 - $15,000,000.000] x 10% = $500,000.00). If Seller is entitled to an Earnout Amount, it shall be paid by Purchaser in cash or, at Purchaser's option, by the issuance of restricted shares of the Parent's Common Stock valued at the five-day trailing average of the closing price of the Common Stock as quoted on the American Stock Exchange in the five days immediately prior to the last day of the fiscal year for which the shares are to be issued. The Note, the Shares and the Earnout Amount are collectively referred to herein as the "Purchase Price."
