Common use of Earnout Shares Clause in Contracts

Earnout Shares. (a) In the event that, during the one (1) year period following the Closing Date (the “First Earnout Period”), the VWAP per PubCo Share is greater than or equal to $12.00 for any twenty (20) trading days within any thirty (30) trading day period during the First Earnout Period, PubCo shall promptly (and in any event within five (5) Business Days of such twentieth (20th) trading day) issue or cause to be issued to the Company Shareholder an additional 1,470,588 PubCo Shares (“First Level Contingent Share Consideration”) for no additional consideration. Further, in the event that, during the eighteen (18) month period following the Closing Date (the “Second Earnout Period”), the VWAP per PubCo Share is greater than or equal to $15.00 for any twenty (20) trading days within any thirty (30) trading day period during the Second Earnout Period, PubCo shall promptly (and in any event within five (5) Business Days of such twentieth (20th) trading day) issue or cause to be issued to the Company Shareholder an additional 1,470,588 PubCo Shares (“Second Level Contingent Share Consideration”) for no additional consideration. Finally, in the event that, PubCo’s First Annualized Net Gaming Revenue is greater than $171,000,000 (the “Earnings Threshold”), PubCo shall, on the fifth (5th) Business Day after the date the condensed interim financial statements of PubCo for such calendar quarter (or if the Annualized Period corresponds to a fiscal year, the audited financial statements for such Annualized Period) have been finalized, issue or cause to be issued to the Company Shareholder an additional 1,470,588 PubCo Shares for each One Million Dollars ($1,000,000) of the First Annualized Gaming Revenue over the Earnings Threshold, up to a maximum of 6,862,745 PubCo Shares (such PubCo shares issued pursuant to this sentence, “Third Level Contingent Share Consideration”) for no additional consideration. For the avoidance of doubt, the Company Shareholder shall not be entitled to receive more than 9,803,921 PubCo Shares pursuant to this Section 8.25. Notwithstanding the foregoing, if, as of the end of the Business Day on which the Third Level Contingent Share Consideration is otherwise required to be issued under this Section 8.25(a), the closing price per PubCo Share on the Nasdaq or other primary stock exchange, as reported by Bloomberg, is less than $10.20 per PubCo Share, PubCo shall only be obligated to issue or cause to be issued to the Company Shareholder the Third-Level Contingent Share Consideration if the VWAP per PubCo Share is greater than or equal to $10.20 for any twenty (20) trading days within any thirty (30) trading day period during the following six (6) months period. (b) If a Change of Control of PubCo occurs during the First Earnout Period or Second Earnout Period that provides for a price per PubCo Share equal to or in excess of the Dollar threshold applicable to First Level Contingent Share Consideration or Second Level Contingent Share Consideration as specified in clause (a) above, then, immediately prior to the consummation of such Change of Control, to the extent not previously paid, PubCo shall issue or cause to be issued to the Company Shareholder the First Level Contingent Share Consideration and/or Second Level Contingent Share Consideration, as applicable, and the Third Level Contingent Share Consideration. For the purposes of this Agreement, a “Change of Control” shall be deemed to occur with respect to PubCo upon: (i) a sale, lease, license or other disposition, in a single transaction or a series of related transactions, of fifty percent (50%) or more of the assets of PubCo and its direct or indirect Subsidiaries, taken as a whole, to a Person other than the Company Shareholder or any of its Affiliates; (ii) a takeover, scheme of arrangement, merger, consolidation or other business combination of PubCo resulting in any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), other than the Company Shareholder or any of its Affiliates, acquiring at least fifty percent (50%) of the combined voting power of the then outstanding securities of PubCo or the surviving Person outstanding immediately after such combination; or (iii) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), other than the Company Shareholder or any of its Affiliates, obtaining beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of the voting stock of PubCo representing more than fifty percent (50%) of the voting power of the capital stock of PubCo entitled to vote for the election of directors of PubCo. (c) The First Level Contingent Share Consideration, Second Level Contingent Share Consideration and Third Level Contingent Share Consideration and the Dollar threshold applicable to First Level Contingent Share Consideration or Second Level Contingent Share Consideration as specified in clause (a) above shall be adjusted to reflect appropriately the effect of any share split, split-up, reverse share split, bonus share issuance or share distribution (including any dividend or distribution of securities convertible into PubCo Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to PubCo Shares occurring on or after the date hereof and prior to the time such consideration is delivered to the Company Shareholder. (d) PubCo shall, at all times, maintain sufficient authority to permit PubCo to satisfy its issuance obligations set forth in Section 8.25(a) and shall take all actions required to maintain such authority. (e) The right of the Company Shareholder to receive any portion of the Earnout Consideration: (i) does not give the Company Shareholder dividend rights, voting rights, liquidation rights, preemptive rights or other rights of shareholders of PubCo or any ownership rights in the assets of PubCo; (ii) shall not be evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferable by the Company Shareholder, except (A) pursuant to an Order or (B) without consideration in connection with the dissolution, liquidation or termination of the Company Shareholder; provided, that any such transferee(s) shall be bound by the terms of this Section 8.25; (iv) shall not accrue or pay interest on any portion thereof; and (v) does not represent any right other than the contingent right to receive the consideration set forth in this Section 8.25. Any attempted transfer of the right to any Earnout Consideration (other than as specifically permitted by the immediately preceding sentence) shall be null and void.

Earnout Shares. (a) In During the event that, during five (5)-year period from the one hundred and eightieth (1180th) year period day following the Closing Date (the “First Earnout Period”), AMPSA shall, upon the occurrence of any Triggering Event (as defined below), issue additional Shares to Ardagh (subject to any adjustments pursuant to Section 3.6(d)) as follows: (i) 12,146,000 Shares (the “First Level Contingent Consideration”) if the AMPSA VWAP per PubCo Share is greater than or equal to $12.00 for 13.00 over any twenty ten (2010) trading days within any thirty (30) trading day period during the First Earnout Period, PubCo shall promptly Period (and in any event within five (5) Business Days of such twentieth (20th) trading day) issue or cause to be issued to the Company Shareholder an additional 1,470,588 PubCo Shares (“First Level Contingent Share ConsiderationTriggering Event”); (ii) for no additional consideration. Further, in the event that, during the eighteen (18) month period following the Closing Date 12,146,000 Shares (the “Second Earnout PeriodLevel Contingent Consideration”), ) if the AMPSA VWAP per PubCo Share is greater than or equal to $15.00 for over any twenty ten (2010) trading days within any thirty (30) trading day period during the Second Earnout Period, PubCo shall promptly (and in any event within five (5) Business Days of such twentieth (20th) trading day) issue or cause to be issued to the Company Shareholder an additional 1,470,588 PubCo Shares (“Second Level Contingent Share Consideration”) for no additional consideration. Finally, in the event that, PubCo’s First Annualized Net Gaming Revenue is greater than $171,000,000 Period (the “Earnings ThresholdSecond Triggering Event”), PubCo shall, on the fifth ; (5thiii) Business Day after the date the condensed interim financial statements of PubCo for such calendar quarter (or if the Annualized Period corresponds to a fiscal year, the audited financial statements for such Annualized Period) have been finalized, issue or cause to be issued to the Company Shareholder an additional 1,470,588 PubCo Shares for each One Million Dollars ($1,000,000) of the First Annualized Gaming Revenue over the Earnings Threshold, up to a maximum of 6,862,745 PubCo 12,146,000 Shares (such PubCo shares issued pursuant to this sentence, the “Third Level Contingent Share Consideration”) for no additional consideration. For the avoidance of doubt, the Company Shareholder shall not be entitled to receive more than 9,803,921 PubCo Shares pursuant to this Section 8.25. Notwithstanding the foregoing, if, as of the end of the Business Day on which the Third Level Contingent Share Consideration is otherwise required to be issued under this Section 8.25(a), the closing price per PubCo Share on the Nasdaq or other primary stock exchange, as reported by Bloomberg, is less than $10.20 per PubCo Share, PubCo shall only be obligated to issue or cause to be issued to the Company Shareholder the Third-Level Contingent Share Consideration if the AMPSA VWAP per PubCo Share is greater than or equal to $10.20 for 16.50 over any twenty ten (2010) trading days within any thirty (30) trading day period during the following six Earnout Period (6the “Third Triggering Event”); (iv) months period12,146,000 Shares (the “Fourth Level Contingent Consideration”) if the AMPSA VWAP is greater than or equal to $18.00 over any ten (10) trading days within any thirty (30) trading day period during the Earnout Period (the “Fourth Triggering Event”); and (v) 12,146,000 Shares (the “Fifth Level Contingent Consideration” and, together with the First Level Contingent Consideration, the Second Level Contingent Consideration, the Third Level Contingent Consideration and the Fourth Level Contingent Consideration, the “Contingent Consideration”) if the AMPSA VWAP is greater than or equal to $19.50 over any ten (10) trading days within any thirty (30) trading day period during the Earnout Period (the “Fifth Triggering Event” and, each of it and the First Triggering Event, the Second Triggering Event, the Third Triggering Event and the Fourth Triggering Event, a “Triggering Event”). (b) Within five (5) Business Days after the occurrence of a Triggering Event, if at all, AMPSA shall issue or cause to be issued to Ardagh the applicable Contingent Consideration. Each tranche of Contingent Consideration in respect of a Triggering Event shall be paid only once, if at all; provided that the achievement of any higher level Triggering Event shall also cause any applicable lower level Triggering Event to be achieved, to the extent not previously achieved; provided, further, that for the avoidance of doubt, Ardagh shall not, subject to Section 3.6(d), be entitled to receive more than 60,730,000 Shares pursuant to this Section 3.6. (c) If a Change of Control of PubCo AMPSA occurs during the First Earnout Period or Second Earnout Period that provides for reflects a per Share price per PubCo Share equal to or in excess of the Dollar threshold any applicable to First Level Contingent Share Consideration or Second Level Contingent Share Consideration as specified AMPSA VWAP required in clause (a) aboveconnection with a Triggering Event, then, immediately prior to the consummation of such Change of Control, any Triggering Event with an AMPSA VWAP equal to or less than the per Share price with respect to the extent Change of Control of AMPSA that has not been previously paid, PubCo achieved shall be deemed to be achieved and AMPSA shall issue or cause to be issued to Ardagh the Company Shareholder the First Level applicable Contingent Share Consideration and/or Second Level Contingent Share Consideration, as applicable, and the Third Level Contingent Share Consideration. For the purposes of this Agreement, a “Change of Control” shall be deemed to occur with respect to PubCo AMPSA upon: (i) a sale, lease, license or other disposition, in a single transaction or a series of related transactions, of fifty percent (50%) or more of the assets of PubCo and its direct or indirect Subsidiariesthe AMP Entities, taken as a whole, to a Person other than the Company Shareholder or any of its Affiliates; (ii) a takeover, scheme of arrangement, merger, consolidation or other business combination of PubCo AMPSA resulting in any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), ) (other than the Company Shareholder or any of its Affiliates, Ardagh) acquiring at least fifty percent (50%) of the combined voting power of the then outstanding securities of PubCo AMPSA or the surviving Person outstanding immediately after such combination; or (iii) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), ) (other than the Company Shareholder or any of its Affiliates, Ardagh) obtaining beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of the voting stock of PubCo AMPSA representing more than fifty percent (50%) of the voting power of the capital stock of PubCo AMPSA entitled to vote for the election of directors of PubCoAMPSA. (cd) The First Level Contingent Share Consideration, Second Level Contingent Share Consideration and Third Level Contingent Share Consideration and the Dollar threshold applicable to First Level Contingent Share Consideration or Second Level Contingent Share Consideration as specified in clause (a) above AMPSA VWAP shall be appropriately adjusted to reflect appropriately the effect of any share stock split, split-up, reverse share stock split, bonus share issuance or share distribution stock dividend (including any dividend or distribution of securities convertible into PubCo Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to PubCo Shares (rounded to the nearest whole number), occurring on or after the date hereof of this Agreement and prior to the time such consideration the applicable Contingent Consideration is delivered to Ardagh (i.e., the Company ShareholderContingent Consideration and AMPSA VWAP shall only be so adjusted with respect to tranches of such Contingent Consideration that, as of the date of such change, have not yet been issued to Ardagh). (de) PubCo AMPSA shall, at all times, maintain keep available for issuance a sufficient authority number of unissued Shares to permit PubCo AMPSA to satisfy its issuance obligations set forth in Section 8.25(a3.6(a) and shall take all actions required to maintain increase the authorized number of Shares if at any time there shall be insufficient unissued Shares to permit such authority. (e) The right reservation. AMPSA shall take such reasonable actions as are requested by Ardagh to evidence the issuances of Shares pursuant to this Section 3.6 and, if requested, through the Company Shareholder to receive any delivery of duly and validly executed certificates or instruments representing the applicable portion of the Earnout Contingent Consideration: (i) does not give the Company Shareholder dividend rights, voting rights, liquidation rights, preemptive rights or other rights of shareholders of PubCo or any ownership rights in the assets of PubCo; (ii) shall not be evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferable by the Company Shareholder, except (A) pursuant to an Order or (B) without consideration in connection with the dissolution, liquidation or termination of the Company Shareholder; provided, that any such transferee(s) shall be bound by the terms of this Section 8.25; (iv) shall not accrue or pay interest on any portion thereof; and (v) does not represent any right other than the contingent right to receive the consideration set forth in this Section 8.25. Any attempted transfer of the right to any Earnout Consideration (other than as specifically permitted by the immediately preceding sentence) shall be null and void.