Earnout Payment Clause Samples
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Earnout Payment. (a) (A) Following the end of the Earnout Period Phase One, Buyer shall deliver to Seller an amount equal to (i) 3.2X the Phase One Earnout Period EBITDA, minus (ii) the Purchase Price (the “Phase One Earnout Payment”); and (B) following the end of the Earnout Period Phase Two, Buyer shall deliver to Seller an amount equal to (X) (i) 3.2X the Phase Two Earnout Period EBITDA plus 3.2X the Phase One Earnout Period EBITDA, (Y) minus (ii) the Purchase Price, minus (iii) the Phase One Earnout Payment (the “Phase Two Earnout Payment” together with the Phase One Earnout Payment being the “Earnout Payment”), all in accordance with and subject to the terms and conditions of this Section 2.05. For the avoidance of doubt, if (1) the amount equal to 3.2X the Phase One Earnout Period EBITDA is less than the Purchase Price, no Phase One Earnout Payment shall be payable to the Seller, or (2) the amount equal to 3.2X the Phase Two Earnout Period EBITDA plus 3.2X the ▇▇▇▇▇▇ One Earnout Period EBITDA is less than the Purchase Price plus the Phase One Earnout Payment (if any), no Phase Two Earnout Payment shall be payable to the Seller.
(b) The Earnout Payment shall be payable to Seller in cash as follows:
(i) The Phase One Earnout Payment shall be distributed to the Seller in accordance with the terms of Section 2.05(c), pursuant to the wire instructions of Seller delivered to Buyer at least three (3) Business Days prior to the Closing Date (as may be updated by Seller by written notice); and
(ii) The Phase Two Earnout Payment shall be distributed to the Seller in accordance with the terms of Section 2.05(d), pursuant to the wire instructions delivered to the Buyer at least three (3) Business Days prior to the Closing Date (as may be updated by Seller by written notice).
(c) Within sixty (60) days following end of the Earnout Period Phase One, Buyer shall deliver to Seller a notice (the “Phase One Notice”) setting forth Buyer’s calculation of the Phase One Earnout Period EBITDA. Within the later of (i) thirty (30) days following Buyer’s delivery of the Phase One Notice, or (ii) the resolution of any disagreement with respect to the Phase One Notice in accordance with Section 2.05(e) below, Buyer shall pay to Seller the Phase One Earnout Payment in accordance with Section 2.05(b)(i).
(d) Within sixty (60) days following the end of the Earnout Period Phase Two, Buyer shall deliver to Seller a notice (the “Phase Two Notice”) setting forth Buyer’s calculation of the Phase Two Ea...
Earnout Payment. (i) As promptly as practicable after the end of the Earnout Period, but in no event later than 60 days following December 31, 2005, Parent shall provide the Stockholders’ Agent with a report, setting forth the Net Revenues for the 12-month period ended December 31, 2005 (the “Earnout Report”). If an Earnout Dispute Notice is not delivered pursuant to Section 2.4(c)(iii) below, then in no event later than 105 days following December 31, 2005, Parent shall pay or cause to be paid the Earnout Payment Amount in accordance with the terms of this Agreement, subject to the right of offset provisions of Sections 2.4(a), (b) and (d).
(ii) Parent shall keep full, clear and accurate books and records with respect to the Business. The books and records shall be maintained in such a manner that Net Revenue shall be readily verifiable. All books and records with respect to the Business shall be available for inspection by the Stockholders’ Agent or any attorney or accountant engaged by the Stockholders’ Agent to act on behalf of the Holders, in all cases upon reasonable prior notice and during normal business hours. The information contained in the books and records of Parent with respect to the Business shall remain confidential. Notwithstanding the foregoing, upon written request of the Stockholders’ Agent, Parent shall provide the Stockholders’ Agent with a report reflecting the estimate of the Net Revenue to date (which estimate is subject to change in the preparation of the Earnout Report) as promptly as practicable thereafter; provided that the Stockholders’ Agent may only make such a request once every six months commencing on July 1, 2005. If the Stockholders’ Agent does not deliver to Parent an Earnout Dispute Notice (as defined below) as set forth in Section 2.4(c)(iii) below, then the Earnout Report for the Earnout Period shall be deemed final and binding and neither the Stockholders’ Agent nor the Holders shall have any further right to contest the report, the computation of Net Revenue or payment of the Earnout Payment Amount.
(iii) In the event that the Stockholders’ Agent shall dispute the information set forth by Parent in the Earnout Report or, if based on the Stockholders’ Agent’s review of the books and records of the Business in accordance with subsection (c)(ii) above, omitted from the Earnout Report, as the case may be, then, within 60 calendar days following the date of the delivery by Parent of such report, the Stockholders’ Agent shall provide w...
Earnout Payment. The Escrow Property shall be held in the Escrow Account and, subject to this ARTICLE III and ARTICLE X, will be released to the Seller (along with the Accrued Dividends) in the event that the Company and its respective Subsidiaries meet certain minimum performance requirements in accordance with this ARTICLE III. Collectively, any payments contemplated under this Section 3.4 shall be referred to as the “Earnout Payment”.
(a) Subject to this ARTICLE III and the provisions of ARTICLE X, in the event that the Company’s Gross Revenue for the year ended December 31, 2019 is:
(i) greater than or equal to RMB 5,000,000,000, then the Escrow Agent shall release and transfer 1,950,000 Escrow Shares to the Seller as set forth in the Release Instructions; or
(ii) less than RMB 5,000,000,000, then no Escrow Shares shall be released and transferred to the Seller pursuant to this Section 3.4(a),
(b) Subject to this ARTICLE III and the provisions of ARTICLE X, in the event that the Company’s Adjusted EBITDA for the year ended December 31, 2019 is:
(i) greater than or equal to RMB 200,000,000, then the Escrow Agent shall release and transfer 7,800,000 Escrow Shares to the Seller as set forth in the Release Instructions;
(ii) is greater than RMB 150,000,000 but less than RMB 200,000,000, then the Escrow Agent shall release and transfer such number of Escrow Shares equal to 3,900,000 plus the product of (A) 3,900,000 and (B) the quotient of (x) Company’s Adjusted EBITDA minus 150,000,000, divided by (y) 50,000,000 (for the avoidance of doubt this amount shall not be greater than 7,800,000 Purchaser Ordinary Shares, nor less than 3,900,000 Purchaser Ordinary Shares) to the Seller as set forth in the Release Instructions;
(iii) equal to RMB 150,000,000, then the Escrow Agent shall release and transfer 3,900,000 Escrow Shares to the Seller as set forth in the Release Instructions; or
(iv) is less than RMB 150,000,000, then no Escrow Shares shall be released and transferred to the Seller pursuant to this Section 3.4(b).
(c) Subject to this ARTICLE III and to any potential Losses set forth in any Claim Notice and the provisions of ARTICLE X, in the event that the Company’s Adjusted EBITDA for the year ended December 31, 2020 is:
(i) greater than or equal to RMB 480,000,000, then the Escrow Agent shall release and transfer 9,750,000 Escrow Shares to the Seller as set forth in the Release Instructions;
(ii) is greater than RMB 340,000,000 but less than RMB 480,000,000, then the Esc...
Earnout Payment. (i) If the Share Price is equal to or greater than $15.00 for at least 20 out of 30 consecutive trading days (counting only those trading days in which there is trading activity) from the period starting from the date immediately following the Closing Date and ending on December 31, 2026 (the “Share Price Earnout”), then Purchaser, along with the Seller Representative, shall prepare, execute and deliver to the Escrow Agent, as soon as practicable but no later than thirty (30) days after the Share Price Earnout is achieved, a joint written instruction instructing the Escrow Agent to release 2,500,000 of the Seller Earnout Escrow Shares from the Seller Earnout Escrow Account to the Sellers in the amounts set forth on the Consideration Spreadsheet (as updated, to the extent necessary, pursuant to Section 2.10).
(ii) If the EBITDA for any fiscal year ending on or before December 31, 2027 is equal to or greater than $60,000,000 as finally determined pursuant to Section 2.08(a) (the “EBITDA Earnout”), then Purchaser, along with the Seller Representative, shall prepare, execute and deliver to the Escrow Agent, as soon as practicable but no later than thirty (30) days after the EBITDA Earnout is achieved, a joint written instruction instructing the Escrow Agent to release 2,500,000 of the Seller Earnout Escrow Shares from the Seller Earnout Escrow Account to the Sellers in the amounts set forth on the Consideration Spreadsheet (as updated, to the extent necessary, pursuant to Section 2.10).
(iii) If there are any Seller Earnout Escrow Shares remaining in the Seller Earnout Escrow Account after application of Section 2.08(b)(i)-(ii), then Purchaser, along with the Seller Representative, shall prepare, execute and deliver to the Escrow Agent, as soon as practicable but no later than thirty (30) days after the applicable earnout period has elapsed, a joint written instruction instructing the Escrow Agent to release such remaining Seller Earnout Escrow Shares from the Seller Earnout Escrow Account to Purchaser, which shares will then be held as treasury shares or canceled by Purchaser, at Purchaser’s election.
(iv) Any payment made pursuant to this Section 2.08 shall be treated as an adjustment to the purchase price for all Tax purposes, except to the extent otherwise required by applicable Law (including, for the avoidance of doubt, with respect to any amounts required to be treated as interest pursuant to Section 483 of the Code or otherwise).
Earnout Payment. (a) The Earnout Consideration shall be paid by Parent in an earnout payment to the Company Stockholders in the form of Parent Earnout Shares in amounts set forth below (in each case, an “Earnout Payment”), in the event that any of the following shall occur:
(i) during any of the time periods beginning as of May 1, 2005 and ending on the date listed in the Performance Target Schedule in the column entitled “Target Date” (subject to clause (ii) below), the Surviving Corporation’s Revenue (as defined below) is equal to or greater than the applicable amount indicated in the column entitled “Revenue Performance Level”:
Earnout Payment. (a) In addition to the Cash Purchase Price and any Net Working Capital Adjustment payable to Sellers, the Buyer also agrees to pay to the Sellers an Earnout Payment (as hereinafter defined) based on certain future Revenues (as hereinafter defined) of the Company. If the Revenues (as hereinafter defined) earned by the Company during the twelve (12) month period commencing as of the Closing Date and terminating on the one year anniversary thereof (the “Earnout Period”) exceed Twenty Seven Million U.S. Dollars ($27,000,000) (the “Threshold Amount”), then Buyer shall be required to pay to Seller thirty percent (30%) of any such excess (such amount, the “Earnout Payment”); provided, however, that Sellers acknowledge and agree that the total sum of the Earnout Payment to be paid by Buyer to Sellers pursuant to this Section 2.4 shall, in no event, exceed Five Million Five Hundred Thousand U.S. Dollars ($5,500,000). As used herein, “Revenue” means any revenues earned by the Company during the Earnout Period as calculated in accordance with GAAP other than “pass through revenues”. As used herein “pass through revenues” mean any out-of-pocket or incidental expenses, including, but not limited to, travel and entertainment expenses, incurred by the Company and which are billed by Bode to its customers and clients at cost, and any revenues arising from or related to the Company’s activities which have not been subject to any cost ▇▇▇▇-up which are paid by the Company to its teaming partners, subcontractors or other parties. For the avoidance of doubt, neither the calculation of Revenues nor the Threshold Amount shall include any “pass through revenues” earned by the Company during the Earnout Period.
Earnout Payment. The Purchaser hereby agrees to pay to the Company a maximum Earnout consideration of six million dollars (USD $6,000,000) in accordance with the following:
(i) Earnout #1: up to a maximum of one million five hundred thousand dollars (USD $1,500,000) will be paid by Purchaser to the Company on the 31st day of March 2012. The Earnout #1 payment will be in an amount equal to one times the aggregate of the Turnover (gross revenue) of Newcorp and the aggregate backlog of business (future Projects of Newcorp under an agreement, purchase order, master services agreement, or other authorization to perform work) between the Closing and the 31st day of March 2012, capped at a maximum Earnout #1 payment of one million five hundred thousand dollars (USD $1,500,000);
(ii) Earnout #2: up to a maximum of four million five hundred thousand dollars (USD $4,500,000) (the “Earnout #2 Cap”) will be paid by Purchaser to the Company on the 10th day following the Earnout #2 (a) or Earnout #2 (b) period. The Earnout #2 payment will be in an amount equal to:
a. the difference between: (i) six (6) times EBITDA of Newcorp for the fiscal year 2013 AND (ii) the aggregate of: (a) the Upfront Purchase Price paid by Purchaser to the Company under the Asset Purchase Agreement and (b) the Earnout 1 already paid and (c) the amount of Research Services actually acquired as purchased by the Company with Credits under Section 7.4(a) of the Asset Purchase Agreement (i.e. USD $600,000). For the purpose of Earnout #2(a), the EBITDA will be measured for the twelve months ended March 31, 2013; or, at the election of the Company:
b. the difference between: (i) six (6) times EBITDA of Newcorp for the fiscal year 2013 and 2014 AND (ii) the aggregate of: (a) the Upfront Purchase Price paid by Purchaser to the Company under the Asset Purchase Agreement and (b) the Earnout 1 already paid and (c) the amount of Research Services actually acquired as purchased by the Company with Credits under Section 7.4(a) of the Asset Purchase Agreement (i.e. USD $600,000). For the purpose of Earnout #2(b), the EBITDA will be measured for the average of the two twelve month periods ended March 31, 2013 and 2014. The Earnout #2, to the extent earned, will be paid ten [10] Business Days after the 31st of March 2013 or 2014 depending on the election of the Company for calculation under Earnout #2(a) or Earnout #2(b) above. If the Company is not paid an aggregate Earnout of one million five hundred thousand dollars (USD $1,5...
Earnout Payment. (i) The Buyer will deliver a schedule (the "NCM Schedule") setting forth the NCM of the Buyer for the relevant period, calculated in accordance with GAAP consistently applied employing the historical accounting practices and policies of the Company that were employed in arriving at the NCM targets set forth in Section 2.2(d).
(ii) Within 45 days following the receipt of each NCM Schedule, the Shareholders Representative, on behalf of the Shareholders, will deliver written notice to the Buyer of any dispute it has with respect to the preparation or content of such NCM Schedule, which notice must specify the disputed item or items. If the Shareholders Representative does not notify the Buyer of a dispute with respect to such NCM Schedule within such 45-day period, such NCM Schedule will be deemed final, conclusive and binding on the parties. If the Shareholders Representative delivers a notice of dispute within such 45-day period, the Buyer and the Shareholder Representative will negotiate in good faith to resolve such dispute. If the Buyer and the Shareholders Representative, notwithstanding such good faith effort, fail to resolve such dispute within 30 days after the Shareholders Representative advises the Buyer of its objections, then the Buyer and the Shareholders Representative will jointly engage an accounting firm mutually agreeable to Buyer and the Shareholders Representative (the "Arbitration Firm") to resolve such dispute. In resolving the dispute, the Arbitration Firm must limit its review to the items that were identified by the Shareholders Representative in the aforementioned notice, and its resolution of the disputed item or items must be based on GAAP. The Arbitration Firm shall deliver to each of the Buyer and the Shareholders Representative its written report as to the final NCM Schedule within 45 days of its engagement. The Buyer and the Shareholders Representative will share equally the fees and expenses of the Arbitration Firm.
(iii) For purposes of complying with the terms set forth in this Section 2.2(d), the Buyer and the Shareholders Representative will cooperate with and make available to the other party and its representatives and the Arbitration Firm (if applicable) all information, records, data and working papers, and will permit access to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis of each NCM Schedule and the resolution of any disputes hereunder.
(iv) If 2003 NCM ...
Earnout Payment. UWWH and the Surviving Corporation acknowledge that the obligations of the Surviving Corporation set forth in this Section 5.3 are an integral part of the consideration to be received by IP in connection with the Transactions. Subject to Section 5.3(a) and Section 5.3(h), following the Closing, the Surviving Corporation shall make a payment, if any, to IP to be calculated and distributed in accordance with this Section 5.3 and Section 5.3 of the Disclosure Letter (the “Earnout Payment”).
(a) Within 30 days after the completion of the Surviving Corporation’s audited financial statements for each of its 2017, 2018 and 2019 fiscal years, the Surviving Corporation shall prepare and deliver a certificate endorsed by an executive officer of the Surviving Corporation certifying a statement (with respect to each such fiscal year, such year’s “Yearly Earnout Statement”) setting forth the Surviving Corporation’s good faith calculation of the Actual EBITDA and Target EBITDA (including any Monthly LTM EBITDA) for such fiscal year and each of the components thereof and attaching reasonable supporting documentation; provided that the Yearly Earnout Statement with respect to the Surviving Corporation’s 2019 fiscal year shall also include the Surviving Corporation’s good faith calculation (the “Preliminary Earnout Payment Calculation”) of the amount of the Earnout Payment, if any, owed to IP. IP shall, no more than 90 days after its receipt of the Yearly Earnout Statement for the Surviving Corporation’s 2019 fiscal year, notify the Surviving Corporation of IP’s good faith calculation of the amount of the Earnout Payment, if any, owed to IP, if different from the Preliminary Earnout Payment Calculation, or that IP agrees with Preliminary Earnout Payment Calculation. If such notice states that IP agrees with the Preliminary Earnout Payment Calculation or if IP does not deliver such notice within such 90-day period, then such amount shall be final. If such notice states that IP disagrees with Preliminary Earnout Payment Calculation, a nationally recognized independent public accounting firm shall be jointly selected to arbitrate and resolve such dispute, and shall make a final determination of the Earnout Payment, in accordance with the applicable procedures, principles and provisions set forth in Section 5.2(c). The fees and expenses of such accounting firm shall be paid in accordance with Section 5.2(c). The determination made pursuant to this Section 5.3, whether by agree...
Earnout Payment. The Stockholders shall be entitled to receive additional shares of Purchaser Common Stock on a pro-rata basis based on their ownership percentages in the Company as set forth on Schedule 1.7 as follows:
(a) On a date that is not later than ten (10) Business Days following the final determination of the Net Income Before Tax for the 2019 fiscal year, the Purchaser shall issue 20,000,000 shares of Purchaser Common Stock to the Stockholders on a pro-rata basis if the Purchaser (and its subsidiaries on a consolidated basis) achieves Net Income Before Tax of RMB825 million for the 2019 fiscal year (the “Earnout 1 Target”), increasing proportionately up to 30,000,000 shares of Purchaser Common Stock if the Purchaser (and its subsidiaries on a consolidated basis) achieves Net Income Before Tax of RMB1,050 million (the “Maximum Earnout 1 Target”) (any such shares issued, the “Earnout 1 Shares”). If the Purchaser (and its subsidiaries on a consolidated basis) achieves between RMB825 million and RMB1,050 million, the Purchaser shall issue to the Stockholders between 20,000,000 and 30,000,000 shares of Purchaser Common Stock on a proportionate basis. By way of example only, if Purchaser (and its subsidiaries on a consolidated basis) achieves Net Income Before Tax of RMB937.5 million for the 2019 fiscal year, the Stockholders shall be entitled to receive 25,000,000 shares of Purchaser Common Stock.
(b) On a date that is not later than ten (10) Business Days following the final determination of the Net Income Before Tax for the 2020 fiscal year, the Purchaser shall issue 15,000,000 shares of Purchaser Common Stock to the Stockholders on a pro-rata basis if the Purchaser (and its affiliates on a consolidated basis) achieves Net Income Before Tax of RMB1,365 million for the 2020 fiscal year (“Earnout 2 Target”), increasing proportionately up to 20,000,000 shares of Purchaser Common Stock if the Purchaser (and its subsidiaries on a consolidated basis) achieves Net Income Before Tax of RMB 1,680 million (the “Maximum Earnout 2 Target”) (any such shares issued, the “Earnout 2 Shares”, together with the Earnout 1 Shares, the “Earnout Shares”). If the Purchaser (and its subsidiaries on a consolidated basis) achieves Net Income Before Tax of between RMB1,365 million and 1,680 million, the Purchaser shall issue to the Stockholders between 15,000,000 and 20,000,000 shares of Purchaser Common Stock on a proportionate basis. By way of example only, if the Purchaser (and its subsid...