Common use of Earnout Payments Clause in Contracts

Earnout Payments. (a) Subject to Section 11.8, Seller shall be entitled to receive up to three earnout payments (each such payment an “Earnout Payment” and all such payments collectively, the “Earnout Payments”) based upon the actual Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to each of the following twelve-month periods (each, an “Earnout Period”): (i) the twelve-month period commencing on the first calendar day of the first calendar month immediately after the Closing Date (the “First Earnout Period”), (ii) the twelve-month period immediately following the First Earnout Period (the “Second Earnout Period”), and (iii) the twelve-month period immediately following the Second Earnout Period (the “Third Earnout Period”). The Earnout Payment for each Earnout Period, if any, shall be an amount equal to the product of (a) an amount equal to (i) the amount of Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to such Earnout Period minus (ii) the applicable Minimum Revenue Threshold multiplied by (b) fifty percent (50%); provided, however, if the foregoing calculation for any Earnout Period results in an amount less than zero, the Earnout Payment for such Earnout Period shall be deemed to be zero. The aggregate amount of all such Earnout Payments shall be referred to in this Agreement as the “Earnout Amount.” Notwithstanding anything to the contrary herein, (a) in no event will the Earnout Amount exceed an amount equal to $22,500,000 in the aggregate, and (b) any Earnout Payment that would otherwise result in the Earnout Amount being greater than $22,500,000 in the aggregate shall be reduced to an amount that results in a total Earnout Amount of $22,500,000 in the aggregate. The Earnout Payment for each Earnout Period, if any, shall be paid no later than 60 days after the end of such Earnout Period. Each Earnout Payment shall be accompanied by a report (each, an “Earnout Report”) showing, in reasonable detail, the calculation of the Earnout Payment for such Earnout Period (for the avoidance of doubt, even if the amount of an Earnout Payment for a particular Earnout Period is zero, Buyer shall deliver an Earnout Report for such Earnout Period to Seller).

Earnout Payments. (a) Subject In the event that and only in the event that the Buyer Parties or their Affiliates attain the milestone-based objectives for the Business set forth in Annex A (the “MBOs”) for fiscal years 2011, 2012 or 2013, Buyer will pay to Seller as additional consideration for the Purchased Assets additional amounts in accordance with this Section 11.8, Seller shall be entitled to receive up to three earnout payments 1.7 and Annex A hereto (each such payment payment, if any, an “Earnout Payment” and all such payments collectively, the “Earnout Payments”) based upon the actual Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to each of the following twelve-month periods (each, an “Earnout Period”): (i) the twelve-month period commencing on the first calendar day of the first calendar month immediately after the Closing Date (the “First Earnout Period”), (ii) the twelve-month period immediately following the First Earnout Period (the “Second Earnout Period”), and (iii) the twelve-month period immediately following the Second Earnout Period (the “Third Earnout Period”). The An Earnout Payment for each Earnout Period, if any, any such fiscal year shall be only become due and payable by Buyer in the event that and only in the event that Buyer Parties or their Affiliates achieve an amount equal MBO for such fiscal year as set forth on Annex A and Xxxxxx continues to serve the product Buyer Parties as of the end of such fiscal year (a) an amount equal unless such failure to (i) serve the amount Buyer Parties is as a result of Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to such Earnout Period minus (ii) the applicable Minimum Revenue Threshold multiplied by (b) fifty percent (50%Xxxxxx death or disability); provided, however, that if Xxxxxx resigns for Good Reason (as such term is defined in the foregoing calculation for any Earnout Period results Employment Agreement (as defined below)) or is terminated by the Buyer Parties without Cause (as such term is defined in an amount less than zerothe Employment Agreement), notwithstanding anything contained herein to the contrary, the Seller shall be entitled to the Revised Earnout Payment for such Earnout Period shall be deemed to be zero(as defined in Annex A). The aggregate amount of all such Earnout Payments shall be referred to in this Agreement as the “Earnout Amount.” Notwithstanding anything to the contrary herein, (a) in no event will the Earnout Amount exceed an amount equal to $22,500,000 in the aggregate, and (b) any Earnout Payment that would otherwise result in the Earnout Amount being greater than $22,500,000 in the aggregate shall be reduced to an amount that results in a total Earnout Amount of $22,500,000 in the aggregate. The Earnout Payment for each Earnout Period, if any, shall be paid no later than 60 days after the end of such Earnout Period. Each Earnout Payment shall be accompanied by a report (each, an “Earnout Report”) showing, in reasonable detail, the calculation of the Earnout Payment for such fiscal year shall be calculated in accordance with Annex A. All Earnout Period (for Payments to be made pursuant to this Section 1.7 will be paid in cash by wire transfer of immediately available funds as soon as practicable after the avoidance of doubt, even if the amount of date on which an Earnout Payment for a particular is finally determined under this Section 1.7. Parent shall guarantee the payment of the Earnout Period is zeroPayments from Buyer to Seller, pursuant to the terms of the Guaranty (defined below). All calculations required to be made by this Section 1.7, including Buyer’s computation of the amounts payable under this Section 1.7 (collectively, “Calculations”), will be made by the Buyer and delivered to the Seller within 30 days of the applicable fiscal year end. At the time of each such payment, Buyer shall deliver an Earnout Report for such Earnout Period provide a computation of the amounts payable under this Section 1.7 and Seller will have the right to Seller)communicate with, and review the work papers, schedules, memoranda, and other documents Buyer prepared or reviewed in preparing the Calculations under this Section 1.7.

Earnout Payments. (a) Subject to Section 11.8In the event that, Seller shall be at any time following the Closing Date, the Equityholders, Bonus Recipients or Convertible Noteholders become entitled to receive up to three earnout payments (each such payment an “Earnout Payment” and all such payments collectively, the “Earnout Payments”) based upon the actual Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to each any portion of the following twelve-month periods Earnout Consideration pursuant to this Section 2.13 (each, an “Earnout PeriodPayment”): ), Parent shall (i) deposit and issue to Parent’s transfer agent a number of shares of Parent Common Stock equal to the twelvenumber of Earnout Shares issuable to the Founders with respect to such Earnout Payment as set forth in the Distribution Waterfall, issued in the names of such Founders in book-month period commencing on entry form; provided, however, notwithstanding any other provision of this Agreement in no event shall the first calendar day aggregate number of shares of Parent Common Stock to be issued pursuant to this Agreement exceed 19.99% of the first calendar month total outstanding shares of Parent Common Stock as of immediately after prior to the Closing Date (the “First Earnout Period”)Effective Time, (ii) deliver to the twelve-month period immediately following Company Stockholders (other than the First holders of Dissenting Stock) and in accordance with Pro Rata Deferred Payment Shares, cash in an amount equal to the Earnout Period (Cash Amount payable to such Company Stockholders with respect to such Earnout Payment as set forth in the “Second Earnout Period”)Distribution Waterfall, and (iii) deliver to the twelve-month period immediately following Surviving Corporation (for the Second Earnout Period (benefit of the “Third Earnout Period”Optionholders, Bonus Recipients and Convertible Noteholders, and in accordance with the Pro Rata Deferred Payment Shares). The Earnout Payment for each Earnout Period, if any, shall be cash in an amount equal to the product of (a) an amount equal Earnout Cash Amount payable to (i) the amount of Adjusted GAAP Revenue recognized by the Company such Optionholders, Bonus Recipients and its Subsidiaries Convertible Noteholders with respect to such Earnout Period minus (ii) Payment as set forth in the applicable Minimum Revenue Threshold multiplied by (b) fifty percent (50%)Distribution Waterfall; provided, however, that if such Earnout Payment represents Earnout Consideration payable pursuant to Section 2.13(b)(i) above, then (x) a number of Earnout Shares equal to fifteen percent (15%) of all Earnout Shares comprising such Earnout Payment (the foregoing calculation “Earnout Escrow Shares”) and (y) an amount in cash equal to fifteen percent (15%) of the Earnout Cash Amount comprising such Earnout Payment (the “Earnout Escrow Cash Amount”) shall not be issued or paid to the Equityholders, Bonus Recipients or Convertible Noteholders and shall instead be delivered by Parent to the Escrow Agent, to be held by the Escrow Agent in the Escrow Account in accordance with the provisions of the Escrow Agreement. Parent shall deliver each such Earnout Payment not later than thirty (30) days after the filing of Parent’s Annual Report on Form 10-K with the U.S. Securities and Exchange Commission for the fiscal year during which the applicable Earnout Period ends. To the extent that Parent delivers any Earnout Period results in an amount less than zeroPayment to the Company Stockholders and the Surviving Corporation as provided herein, the Earnout Payment for such Earnout Period payment shall be deemed to be zero. The aggregate amount of all such Earnout Payments shall be referred to satisfy in this Agreement as the “Earnout Amountfull Parent’s obligations in respect thereof.” Notwithstanding anything to the contrary herein, (a) in no event will the Earnout Amount exceed an amount equal to $22,500,000 in the aggregate, and (b) any Earnout Payment that would otherwise result in the Earnout Amount being greater than $22,500,000 in the aggregate shall be reduced to an amount that results in a total Earnout Amount of $22,500,000 in the aggregate. The Earnout Payment for each Earnout Period, if any, shall be paid no later than 60 days after the end of such Earnout Period. Each Earnout Payment shall be accompanied by a report (each, an “Earnout Report”) showing, in reasonable detail, the calculation of the Earnout Payment for such Earnout Period (for the avoidance of doubt, even if the amount of an Earnout Payment for a particular Earnout Period is zero, Buyer shall deliver an Earnout Report for such Earnout Period to Seller).

Earnout Payments. (a) Subject After the Closing, subject to Section 11.8the terms and conditions set forth herein, Seller the Company Securityholders shall be entitled have the contingent right to receive up to three earnout payments (each such payment an “Earnout Payment” and all such payments collectively, additional consideration from the “Earnout Payments”) Parent based upon on the actual Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to each performance of the following twelve-month periods (each, an “Earnout Period”): Parent if the requirements as set forth in this Article II are achieved. In the event that (i) EBITDA (measured at any applicable Measurement Date occurring within calendar year 2018 and using the twelveMeasurement Methodologies) exceeds One Hundred Forty-month period commencing on the first calendar day of the first calendar month immediately after the Closing Date Four Million U.S. Dollars ($144,000,000) (the “First Earnout Period2018 Target”), (ii) EBITDA (measured at any applicable Measurement Date occurring within calendar year 2019 and using the twelveMeasurement Methodologies ) exceeds One Hundred Fifty-month period immediately following the First Earnout Period Five Million U.S. Dollars ($155,000,000) (the “Second 2019 Target”), or (iii) EBITDA (measured at any applicable Measurement Date occurring within calendar year 2020 using the Measurement Methodologies) exceeds One Hundred Sixty-Five Million U.S. Dollars ($165,000,000) (the “2020 Target” and together with the 2018 Target and 2019 Target, the “Earnout Targets” and each of calendar years 2018, 2019 and 2020 an “Earnout Year”), in each case, at any time during the period beginning on and including the Closing Date and ending on and including December 31, 2020 (the “Earnout Period”), and (iii) the twelve-month period immediately following the Second Earnout Period (the “Third Earnout Period”). The Earnout Payment then for each Earnout PeriodTarget that is achieved as of a given Measurement Date, if any, the Company Securityholders shall receive additional consideration (in accordance with their respective Pro Rata Shares) from the Parent (a “Regular Earnout Payment”) of (A) Three Million Three Hundred Thousand (3,300,000) Parent Common Shares (which shall be equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the Closing) (an “Earnout Stock Payment”) and (B) cash in an amount equal to the product of Thirty-Three Million U.S. Dollars (a$33,000,000) an amount equal to (i) the amount of Adjusted GAAP Revenue recognized by the Company and its Subsidiaries with respect to such Earnout Period minus (ii) the applicable Minimum Revenue Threshold multiplied by (b) fifty percent (50%); provided, however, if the foregoing calculation for any Earnout Period results in an amount less than zero, the Earnout Payment for such Earnout Period shall be deemed to be zero. The aggregate amount of all such Earnout Payments shall be referred to in this Agreement as the “Earnout Amount.” Notwithstanding anything to the contrary herein, (a) in no event will the Earnout Amount exceed an amount equal to $22,500,000 in the aggregate, and (b) any Earnout Payment that would otherwise result in the Earnout Amount being greater than $22,500,000 in the aggregate shall be reduced to an amount that results in a total Earnout Amount of $22,500,000 in the aggregate. The Earnout Payment for each Earnout Period, if any, shall be paid no later than 60 days after the end of such Earnout Period. Each Earnout Payment shall be accompanied by a report (each, an “Earnout ReportCash Payment”) showing, in reasonable detail, the calculation of the Earnout Payment for such Earnout Period (for ). For the avoidance of doubt, even if the amount Company Securityholders shall have the right to receive no more than three Regular Earnout Payments during the Earnout Period, and the aggregate sum of an all Earnout Payment for Stock Payments and Earnout Cash Payments payable hereunder (assuming all three Earnout Targets are achieved during the Earnout Period), shall be a particular Earnout Period is zeromaximum of 9,900,000 Parent Common Shares and $99,000,000, Buyer shall deliver an Earnout Report for such Earnout Period to Seller)respectively.