Earnout Consideration. (a) In addition to the Initial Purchase Price, Seller shall be entitled to receive additional consideration for the Purchased Assets (the “Earnout Consideration”) in an amount to be determined in accordance with the terms of Section 3.2(b) and contingent upon the financial performance of the Business represented by the Purchased Assets (the “Interpoint Division”), as calculated and described in Section 3.2(b), during the one year period commencing six (6) months from the last day of the month of the Closing Date and ending twelve (12) months thereafter (the “Earnout Period”). The Earnout Consideration, if any, will be paid through the issuance of a note with terms identical to the terms of the Convertible Note, except with respect to issue date, conversion date and prepayment date (the “Earnout Note”). The Earnout Note shall restrict conversion or prepayment any time prior to the one year anniversary of the issue date.
(b) The Earnout Consideration shall equal the product of (x) twice the Interpoint Recurring Revenue recorded by the Interpoint Division for the Earnout Period plus (y) the Streamline Health Recurring Revenue recorded by the Interpoint Division for the Earnout Period less (z) $3,500,000. The Earnout Consideration, if any, will be paid to Seller no later than July 31, 2013. For the purposes of this section, “Interpoint Recurring Revenue” shall mean gross revenues, excluding Streamline Health Recurring Revenue, derived from the Contracts set forth on Schedule 3.2(b)(i), plus revenue derived from any Contracts executed after the execution date of this Agreement and before the end of the Earnout Period, so long as such Contracts have a minimum remaining term of at least twelve (12) months after April 30, 2013. “Streamline Health Recurring Revenue” shall mean gross revenues derived from the Contracts set forth on Schedule 3.2(b)(ii), and those Contracts signed with existing customers of Parent executed after the Closing Date and before the end of the Earnout Period. Purchaser and Seller acknowledge that Purchaser will control the Interpoint Division after the Closing, including the right to determine subscription pricing, the length and term of software licenses and the level of sales resources allocated to the Interpoint Division. Purchaser and Seller will seek to work in good faith to provide the Interpoint Division with adequate resources to pursue growth opportunities consistent with the financial plan previously provided by Seller to Purchase...
Earnout Consideration. (a) As additional consideration for the Purchased Assets, within 30 days following the end of the Earnout Period, Buyer shall deliver to Seller a statement setting forth the Average Earnout Period Value and the Earnout Amount (the “Earnout Statement”), in each case determined in a manner consistent and in accordance with this Agreement.
(b) Following receipt by Seller of Buyer’s proposed Earnout Statement, Seller will be permitted to review the Business’ books and records and working papers related to Buyer’s draft of the proposed Earnout Statement and determination of the Average Earnout Period Value and Earnout Amount, and Buyer will provide Seller with reasonable access to the Business’ personnel, books and records, and facilities in connection with such review. The proposed Earnout Statement delivered by Buyer will become final and binding on the parties 30 days following Buyer’s delivery thereof to Seller except to the extent (and only to the extent) Seller delivers written notice of its disagreement (the “Earnout Amount Notice of Disagreement”) to Buyer on or prior to such date. All matters not subject to dispute as specifically identified in the Earnout Amount Notice of Disagreement will be final and binding. The Earnout Amount Notice of Disagreement must identify each item in the Earnout Statement that the Seller disagrees with and, for each disputed item, contain a statement describing in reasonable detail the basis of such objection and the amount in dispute. If Seller timely delivers an Earnout Amount Notice of Disagreement, then the Earnout Statement will become final and binding on the parties to this Agreement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Earnout Amount Notice of Disagreement; and (ii) the date all matters in dispute are finally resolved in writing by CliftonLarsonAllen LLP (the “Independent Accountant”).
(c) During the 30 days following delivery of an Earnout Amount Notice of Disagreement, Buyer and Seller will seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Earnout Amount Notice of Disagreement. At the end of the such 30-day period, Buyer and Seller will submit to the Independent Accountant for resolution all matters that remain in dispute, which were included in the Earnout Amount Notice of Disagreement (and will take all actions reasonably requested by the Ind...
Earnout Consideration. 4.1 Earnout Consideration, (a) If one of the financial performance levels provided in Section 4.1(b)(i), (ii) or (iii) is achieved, OHM shall make certain payments (the "Earnout Consideration") to the Executive and the other Shareholders as provided therein.
Earnout Consideration. If the Surviving Company achieves the revenue targets as set forth and as calculated pursuant to Schedule 1.13(a) (the “Earnout Calculation Schedule”) at any time during the period starting on the earlier of the Closing Date or July 1, 2010 through January 1, 2012 (the “Earnout Period”), then as soon as reasonably practicable following the Final Determination thereof (but in no event prior to July 3, 2011) as provided in this Section 1.13, for the applicable Earnout Period, Parent shall deposit (by wire transfer of immediately available funds) with the Exchange Agent an amount equal to the aggregate amount of the Securityholder’s allocable portion of the amount of cash set forth on the Earnout Calculation Schedule. The Exchange Agent shall distribute such amount of cash to those Securityholders that have properly completed a Letter of Transmittal, if applicable, in accordance with the allocations set forth in the Spreadsheet. Parent shall also issue (or cause to be issued and distributed by the Exchange Agent), Parent Common Stock to those Securityholders entitled to the same as set forth on the Spreadsheet in accordance with the allocations set forth in the Spreadsheet (based on each Securityholder’s Stock Election Percentage and Cash Election Percentage, if applicable, and calculated in accordance with Section 1.13(b)(viii)) (such cash and Parent Common Stock collectively, the “Earnout Consideration”).
Earnout Consideration. (a) From and after the Closing, at such times as provided in Exhibit G, Buyer shall (i) pay, or cause to be paid, to Sellers, cash by wire transfer of immediately available funds and/or (ii) direct Parent to issue, or cause to be issued, shares of DMS Class A Common Stock, to Sellers, in each case, as set forth in, and on and subject to the terms, conditions, contingencies, procedures and definitions set forth in, Exhibit G attached hereto (such cash or shares, collectively, the “Earnout Consideration”).
(b) The Parties acknowledge, understand and agree that (i) the contingent right to receive any portion of the Earnout Consideration shall not be represented by any form of certificate or other instrument and such right is not transferable, except by operation of law, and does not solely constitute an equity or ownership interest in Parent, Buyer or any of their Affiliates, (ii) no Seller shall have any rights as a holder of the securities of Parent, Buyer or any of their Affiliates solely as a result of such Seller’s contingent right to receive any portion of the Earnout Consideration under this Section 2.6 and (iii) no interest shall be payable with respect to any portion of the Earnout Consideration.
(c) Notwithstanding anything to the contrary contained herein, in the event a Parent Change in Control occurs during any applicable period for the payment of Earnout Consideration as set forth and in accordance with Exhibit G, then any and all amounts contemplated to be payable as Earnout Consideration pursuant to this Section 2.6 and Exhibit G shall automatically accelerate and be payable in full (for the avoidance of doubt, to the extent not previously paid or finally determined not to be payable in accordance herewith or with Exhibit G).
(d) For the avoidance of doubt, the Parties acknowledge and agree that, from and after the Closing, Buyer shall have sole control with regard to operational matters relating to the operation of the Business and use of the Purchased Assets (from and after the Closing); provided that Buyer shall not take any action in bad faith for the purpose of avoiding or reducing any payment or issuance of the Earnout Consideration; provided, further, notwithstanding the foregoing, from and after the Closing, until the expiration of the periods applicable to the payment of the Earnout Consideration in accordance with Exhibit G, (i) Parent or Buyer shall not take action, directly or indirectly, which has the cause to delay, minimize or p...
Earnout Consideration. Subject to the terms and conditions of this Agreement, in addition to the Closing Purchase Price, Seller shall receive additional consideration (the "Earnout Consideration") as set forth below:
Earnout Consideration. (a) If the EBITDA attributable to the Business during the period beginning on the first day of the first calendar month following the Closing Date and ending on the date six months thereafter (the "Earnout Period") equals or exceeds $600,000, then Purchaser shall, at the Purchaser's option, either (i) pay $500,000 in cash to the Shareholders, on a pro rata basis or (ii) issue to the Shareholders, on a pro rata basis, certificates representing the number of shares of Purchaser Common Stock determined by dividing $500,000 by the greater of (A) the average NASDAQ closing price of Purchaser Common Stock for the 10 business days ending immediately prior to the end of the Earnout Period and (B) $2.75 (the amounts payable to the Shareholders pursuant to this Section 3.2(a), the "Initial Earnout Consideration"). For each $1.00 of the EBITDA attributable to the Business during the Earnout Period in excess of $600,000, the Purchaser shall, at the Purchaser's option, either (i) pay to the Shareholders, on a pro rata basis, cash in an amount equal to 30% of such excess, or, (ii) issue to the Shareholders, on a pro rata basis, certificates representing the number of shares of Purchaser Common Stock determined by dividing 30% of such excess by the greater of (x) the average NASDAQ closing price of Purchaser Common Stock for the 10 business days ending immediately prior to the end of the Earnout Period and (y) $2.75, (the amounts payable to the Shareholders pursuant to this Section 3.2(b), the "Additional Earnout Consideration" and together with the Initial Earnout Consideration, the "Earnout Consideration"); provided, however, that in no event shall the value of the Additional Earnout Consideration exceed $200,000 (determined in accordance with clause (ii) above). As used herein the term "EBITDA" means net income as determined in accordance with GAAP applied in a manner consistent with the application of those principles in the Interim Balance Sheet (i) less any applicable interest income and plus any applicable interest expense and (ii) plus the any income tax expenses and less any income tax credits and (iii) plus any applicable depreciation and amortization expense.
Earnout Consideration. In addition to the Closing Purchase Price, if the earnout performance milestones (each an "Earnout Milestone" and collectively the "Earnout Milestones") set forth below in Section 1.6(b) are satisfied, Seller shall receive, subject to the terms and conditions of this Agreement, additional consideration (the "Earnout Consideration") as set forth below in Section 1.6(b). Notwithstanding anything to the contrary in this Agreement, Buyer shall have a right to offset against the Earnout Consideration in order to secure Seller's indemnification obligations under ARTICLE VI.
Earnout Consideration. “Earnout Consideration” shall mean a number of Acquirer Shares equal to the Earnout Amount divided by the Acquirer Stock Price, rounded to the nearest whole share; provided, however, if the calculation would result in the issuance of a total number of Acquirer Shares issued pursuant to this Agreement in excess of the Acquirer Share Maximum, then the Earnout Consideration instead will be paid out in Acquirer Shares only up to the Acquirer Share Maximum, after which any remaining Earnout Amount will be paid out in cash. The Earnout Amount shall be calculated as provided in Section 1.16 hereof.
Earnout Consideration. In addition to the Closing Consideration, Parent will issue (i) $6,000,000 of additional merger consideration (the “Milestone 1 Earnout Amount”) if the Surviving Corporation has achieved Milestone 1 (as defined below) prior to December 31, 2015 and (ii) an additional $6,000,000 of additional merger consideration (the “Milestone 2 Earnout Amount”) if the Surviving Corporation has achieved Milestone 2 (as defined below) prior to December 31, 2015. (The Milestone 1 Earnout Amount and the Milestone 2 Earnout Amount are referred to herein collectively as the “Earnout Amount.”) The Earnout Amount, if and to the extent earned, will be payable after a final determination of the Earnout Amount pursuant to Section 2.8(b). The Earnout Amount, if and to the extent earned, will be payable in shares of Parent Common Stock as described in Section 2.7, and the Earnout Amount will be allocated among the holders of record of Company Stock as of the Effective Time as set forth in Section 2.7 of the Agreement.
(a) For purposes of this Section 2.8:
