Determination of Earn-Out Consideration Sample Clauses

The Determination of Earn-Out Consideration clause defines how additional payments to the seller, contingent on the business's post-closing performance, are calculated and distributed. Typically, this clause outlines the specific financial metrics or milestones that must be met, the time period over which performance is measured, and the process for verifying results, such as through audited financial statements. Its core function is to provide a clear and objective method for calculating earn-out payments, thereby reducing disputes and aligning incentives between buyer and seller after the transaction closes.
Determination of Earn-Out Consideration. Following the achievement of any Earn-Out Milestone (and no later than within 5 Business Days thereof), the Company shall prepare and deliver to the Shareholders’ Representative (with a copy to the Parent Group) a written statement that said Earn-Out Milestone has been achieved (the “Earn-Out Achievement Notice”). The Earn-Out Achievement Notice shall include (i) confirmation or which Earn-Out Milestone was achieved and the date thereof; and (ii) confirmation by the General Counsel of the Parent that all of the Parent Groups’ representations and warranties as set out in Article VI are true and correct as of such date.
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Determination of Earn-Out Consideration. (a) The Earn-Out Statement shall be prepared by Purchaser in accordance with the accounting methods and principles set out in Schedule 2.03(a). (b) If the Selling Shareholders should disagree with the Earn-Out Statement, the Selling Shareholders may, within 20 Business Days from receipt of the relevant Earn-Out Statement, deliver a written notice to Purchaser (the “Earn-Out Objection Notice”). The Earn-Out Objection Notice shall contain a calculation and specify in reasonable detail those items or amounts as to which the Selling Shareholders disagree and the reasons therefor. If no timely Earn-Out Objection Notice is delivered within the deadline, Purchaser’s determination of the Earn-Out Consideration in the relevant Earn-Out Statement shall be final and binding. (c) If an Earn-Out Objection Notice is delivered pursuant to Section 2.03(b), the Parties shall, during 20 Business Days following such delivery, use reasonable good faith efforts to reach an agreement on the disputed items or amounts in order to agree in writing on the amount of the Earn-Out Consideration. (d) If the Parties are unable to reach an agreement within the period referred to in Section 2.03(c), either Party may refer the matter to an Independent Accountant to be agreed between the Parties or appointed, as the case may be, in accordance with Section 2.10(e). Section 2.10(g) shall apply by analogy to the Independent Accountant’s determination of the relevant Earn-Out Consideration. (e) Purchaser shall provide the Selling Shareholders with access to the book and records of the Acquired Companies, and furnish as soon as practicable possible such information concerning the Business, properties, Contracts, assets, liabilities, personnel and other aspects of the Acquired Companies as the Selling Shareholders may request, including reasonable access upon reasonable notice to the CEO of the Company if i) such access to the CEO is approved in advance by an executive of Purchaser, such approval not to be unreasonably withheld, delayed or conditioned, or ii) an executive of the Purchaser participates in any such access, until the final resolution and payment of the Earn-Out Consideration; provided, that all such information shall be deemed to be Confidential Information subject to the protections set forth in Section 5.06.
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Determination of Earn-Out Consideration. For each calendar year during the period commencing January 1, 2002 through December 31, 2004, Buyer shall prepare a report containing a balance sheet and a related statement of income of the division of Buyer or any of its Subsidiaries comprised solely of the Assets, but specifically including any Future Business Units (the "Division"), for the calendar year or period then ended, prepared in accordance with GAAP, together with a statement based upon such report and stating that it was prepared in accordance with this Agreement and setting forth for the calendar year or period under examination and the calculation of the Pre-Tax Profit (as hereinafter defined) for such calendar year (such yearly statement of Buyer is hereinafter referred to as the "Annual Determination"). A copy of each such Annual Determination shall be delivered to Company not later than 120 days after the end of the calendar year or period to which such Annual Determination relates.
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Determination of Earn-Out Consideration. (a) If the Selling Shareholders should disagree with the Earn-Out Statement, the Selling Shareholders’ Representative may, within twenty (20) Business Days from receipt of the relevant Earn-Out Statement, deliver a written notice to Purchaser (the “Earn-Out Objection Notice”). The Earn-Out Objection Notice shall contain a calculation and specify in reasonable detail those items or amounts as to which the Selling Shareholders disagree and the reasons therefor. If no timely Earn-Out Objection Notice is delivered within the deadline, Purchaser’s determination of the Earn-Out Consideration in the relevant Earn-Out Statement shall be final and binding. (b) If an Earn-Out Objection Notice is delivered pursuant to Section 2.03(a), the Parties shall, during twenty (20) Business Days following such delivery, use reasonable good faith efforts to reach an agreement on the disputed items or amounts in order to agree in writing on the amount of the Earn-Out Consideration. (c) If the Parties are unable to reach an agreement within the period referred to in Section 2.03(c), either Party may refer the matter to an Independent Accountant to be agreed between the Parties or appointed, as the case may be, in accordance with Section 2.09(e) and the provisions of Section 2.09(b) to Section 2.09(e) shall apply by analogy to the Independent Accountant’s determination of the relevant Earn-Out Consideration.
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Determination of Earn-Out Consideration. For each month during the Earn Out Period, Purchaser shall prepare for Seller a report containing (a) the amount of revenue billed on a service period/GAAP accrual accounting basis, and (b) the Earn Out Consideration actually received by the Purchaser and payable to Seller during such month. (a) If Seller does not agree that the determination by Purchaser for any period does not correctly state the Earn Out Consideration payable to Seller, Seller shall give written notice of its disagreement (in reasonable detail describing the nature of the disagreement) and Seller and Purchaser shall attempt to reconcile their differences. (b) If Seller and Purchaser are unable to reconcile their differences in writing within 30 days after delivery of the written notice, Seller and an independent certified public accounting firm appointed by Seller may review the applicable books and records of Purchaser. Purchaser shall permit such review of the applicable books and records upon reasonable notice. All costs and expenses in connection with or arising from such review by Seller and its accounting firm shall be paid by Seller. Seller shall be able to perform such a review no more than 1 time per year. (c) Seller and Purchaser shall attempt to resolve any dispute between the parties concerning the Earn Out Consideration for 30 days. If they are unable to resolve the dispute, the dispute shall be resolved in accordance with Section 8.
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Determination of Earn-Out Consideration. Subject to the terms and conditions of this Section 2, the Earn-Out for:
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Determination of Earn-Out Consideration. After the end of the Earn-Out Period, but in any event prior to sixty (60) days following the expiration of such period, Acquiror will prepare and deliver to Transferor, a preliminary report setting forth Transferor's performance during the Earn-Out Period with respect to the First Performance Goal and the Second Performance Goal (the "Acquiror's Earn-Out Proposal"). Within thirty (30) days of the delivery of the Acquiror's Earn-Out Proposal, Transferor will provide Acquiror with notice of any specific objections with respect to any particular items contained in Acquiror's Earn-Out Proposal. Upon any such objection, the parties shall work together in good faith to determine the appropriate amounts to be included in the above-calculated numbers. The final agreed upon calculations of the First Performance Goal or the Second Performance Goal shall be determinative for purposes hereof. Any disputes regarding the foregoing (but not regarding any other provision of this Section 2.7), to the extent not resolved by negotiations among the parties, shall be determined by an accounting firm mutually acceptable to the parties. The determination made by the accounting firm so selected shall be conclusive and binding upon the parties. The fees and expenses of such accounting firm shall be shared equally by Acquiror and Transferor.
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Related to Determination of Earn-Out Consideration

  • Determination of Gross-Up Payment Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement

  • Determination of Consideration For purposes of this Subsection 4.4, the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:

  • Earn-Out Payment If, during the period beginning January 1, 2022 and ending on December 31, 2022 (the “Earn-Out Period”), the Group Companies achieve certain Adjusted EBITDA targets as set forth in this Section 2.6.1 (the “Earn-Out Milestone”), then Buyer shall pay, or cause to be paid, to Seller and to the individuals set forth on Schedule 1.2(a) and Schedule 1.2(b) an aggregate amount not to exceed $50,000,000 subject to the proviso in Section 2.6.1(c) (the “Earn-Out Payment”), which shall be payable in accordance with Section 2.6.2. The Earn-Out Payment shall be calculated as follows: (a) If the Adjusted EBITDA of the Group Companies during the Earn-Out Period is less than the Earn-Out Threshold, the Earn-Out Payment shall be zero dollars ($0); and (b) If during the Earn-Out Period, the Group Companies achieve an Adjusted EBITDA (i) equal to or greater than the Earn-Out Target, the Earn-Out Payment shall be $50,000,000 (subject to the proviso in Section 2.6.1(c)); or (ii) less than the Earn-Out Target, but greater than the Earn-Out Threshold, the Earn-Out Payment shall be an amount equal to the product of: (A) $50,000,000 (subject to the proviso in Section 2.6.1(c)) multiplied by (B) a fraction (1) the numerator of which shall be the amount by which the Adjusted EBITDA achieved exceeds the Earn-Out Threshold and (2) the denominator of which shall be an amount equal to the Earn-Out Target minus the Earn-Out Threshold. (c) Notwithstanding anything to the contrary, in no event shall the Earn-Out Payment exceed $50,000,000; provided, that the amount of the Earn-Out Payment will be increased by the lesser of (i) the amount of the final calculation of Accrued Income Taxes solely with respect to clause (g) of the definition of Accrued Income Taxes and (ii) the product of (y) the amount of the Earn-Out Compensatory Payment (if any) and (z) 26%. For the avoidance of doubt, an illustrative example of the calculation of Adjusted EBITDA is set forth on Exhibit B-1.

  • 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 written notice to Parent (the “Earnout Dispute Notice”) specifying the amount disputed and the basis for the dispute, together with supporting documentation reflecting the analysis of and justification for any recomputation made. Parent and the Stockholders’ Agent shall make good faith efforts to resolve the dispute through negotiations for a period of 30 calendar days following the receipt of the written notice defining and describing the nature of the dispute. In the event that the parties are unable to finally resolve the dispute within such 30 calendar-day period, the parties to the dispute may elect by mutual agreement to extend the period of negotiation and may elect by mutual agreement to engage a mediator to assist in such negotiation. To the extent that any matter remains unresolved following negotiations (as determined by notice by any party to the other parties), the Stockholders’ Agent and Parent shall jointly select an independent accountant of recognized national standing to resolve any remaining disagreements, which independent accountant shall not have provided services to the Stockholders’ Agent, the Company or Parent or its affiliates during the five-year period preceding the date of its selection (the “Independent Accountant”). The Stockholders’ Agent and Parent shall use their respective commercially reasonable efforts to cause such Independent Accountant to make its determination within 60 calendar days of accepting its selection. Within 10 business days after the date of determination of such Independent Accountant, Parent shall pay or cause to be paid to the Holders the Earnout Payment Amount, if any, in the manner set forth herein, subject to the right of offset provisions of Sections 2.4(a), (b) and (d). The decision of the Independent Accountant shall be a final, binding, and conclusive resolution of the parties’ dispute, shall be non-appealable, and shall not be subject to further review. Irrespective of the Independent Accountant’s decision, the costs and expenses of the Independent Accountant shall be split equally between the parties. In the event that the Stockholders’ Agent does not pay the full amount of one-half of the Independent Accountant’s costs and expenses, Parent shall be entitled to deduct the difference between one-half of the costs and expenses of the Independent Accountant and the amount actually paid by the Stockholders’ Agent to the Independent Accountant from the Earnout Payment Amount. Notwithstanding the foregoing, in any case, the parties shall be responsible for the payment of their respective costs and expenses, including any attorneys’ and accountants’ fees (other than any accountants’ fees payable to the Independent Accountant, which shall be split equally between the parties) incurred in connection with the dispute. Notwithstanding the foregoing, in any case, the parties shall be responsible for the payment of their respective costs and expenses, including any attorneys’ and accountants’ fees (other than any accountants’ fees payable to the Independent Accountant, which shall be split equally between the parties) incurred in connection with the dispute. (iv) The Holders will be deemed to, as part of their approval and adoption of the Merger Agreement and the transactions contemplated therein and herein, and the Stockholders’ Agent hereby, generally, irrevocably, unconditionally and completely agree that (1) the Company and Parent (as the controlling stockholder of the Company as of the Effective Time of the Merger) and each of their respective Affiliates shall be entitled to operate the Business after the Effective Time as they determine in their sole and absolute discretion, and shall have no obligation to operate the Business in any manner that would maximize, maintain or protect the value of the Common Stock CVRs and the Preferred Stock CVRs, and as a result of such operation of the Business, there may be a diminution in or elimination of the value of the CVRs, (2) the Common Stock CVRs and the Preferred Stock CVRs represent contractual obligations of Parent, and none of Parent, the Company or any of their respective Affiliates owes any fiduciary duty of any type (including, without limitation, any duty of loyalty or care) to any Holder of Common Stock CVRs and/or Preferred Stock CVRs, and (3) each of the Holders and the Stockholders’ Agent shall be prohibited from asserting any dispute, right, claim, action, cause of action, controversy or remedy of any kind and nature against any of the Company, Parent or any of their Affiliates resulting from the operation of the Business after the Effective Time or resulting from any allegation of breach of fiduciary duty of any nature, other than claims for fraud or intentional misconduct (and other than the right of the Stockholders’ Agent to dispute the Closing Balance Sheet Payment under Section 2.4(b)(iii) and/or the Earnout Report under Section 2.4(c)(iii) above). Upon either (A) the occurrence of an allegation by the Stockholders’ Agent of any claim which may arise for fraud or intentional misconduct under this subsection (iv) or (B) the receipt by the Stockholders’ Agent of written notice made in accordance with Section 1.3 by any Holder to the Stockholders’ Agent of the occurrence of any claim which such Holder has a good faith belief has arisen for fraud or intentional misconduct under this subsection (iv) (in each case, a “Claim”), the Stockholders’ Agent shall provide notice of such Claim to Parent, stating, to the best of his or her understanding, the circumstances giving rise to the Claim, specifying the amount of the Claim and making a request for any payment then believed due (the “Notice”). Upon receipt of any such Notice by Parent, within the next 45 days thereafter, the parties shall use their reasonable best efforts to cooperate and arrive at a mutually acceptable resolution of such dispute. If a mutually acceptable resolution cannot be reached between the parties within such 45-day period, the Stockholders’ Agent may submit the dispute for resolution by a panel of three arbitrators selected from the panels of arbitrators of the American Arbitration Association in Santa ▇▇▇▇▇ County, California; provided, however, that (i) one arbitrator shall be selected by the Stockholders’ Agent, the second arbitrator shall be selected by Parent and the third arbitrator shall be selected by the two previously selected arbitrators and (ii) in all respects, such panel shall be governed by the American Arbitration Association’s then existing Commercial Arbitration Rules. If it is finally determined that all or a portion of such Claim amount is owed to the Holders, Parent shall, within 10 days of such determination, pay the Holders such amount owed, together with interest from the date that the Stockholders’ Agent initially requested such payment until the date of actual payment, at an annual rate equal to the prime interest rate then generally in effect on the date of payment as set forth in The Wall Street Journal. The arbitration panel’s decision shall be final and binding upon the parties, and may be entered and enforced in any court of competent jurisdiction by any party. The parties shall be responsible for their respective fees and costs (including any attorneys’ or accountants’ fees) incurred in connection with the arbitration. EACH HOLDER AND THE STOCKHOLDERS’ AGENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE FOR FRAUD OR INTENTIONAL MISCONDUCT UNDER THE PRECEDING SENTENCE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO FRAUD OR INTENTIONAL MISCONDUCT UNDER THE PRECEDING SENTENCE. EACH HOLDER AND THE STOCKHOLDERS’ AGENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, AND (C) IT MAKES SUCH WAIVER VOLUNTARILY. (v) Notwithstanding anything to the contrary set forth in this Section 2.4(c), in the event of a Change of Control (as defined below) of Parent before December 31, 2005, the Aggregate Earnout Payment Amount payable pursuant to this Section 2.4(c) shall be at least $14,000,000 regardless of the actual Net Revenue recognized during the Earnout Period, subject, however, to the offset provisions of Section 2.4(a), (b) and (d). In event of a Change of Control of Parent as set forth herein, Parent shall make proper provisions so that the continuing or surviving corporation or entity shall assume the obligation to pay the Aggregate Earnout Payment Amount as set forth herein. For purposes of this Section 2.4(c)(v), a “Change of Control” shall mean (1) the consummation of any transaction, including without limitation, any merger or consolidation, pursuant to which any of the voting stock of Parent is converted into or exchanged for cash, securities or other property, other than any transaction where the voting stock of Parent outstanding immediately prior to such transaction is converted into or exchanged for voting stock of the surviving or transferee entity constituting more than 50% of such voting stock of such surviving or transferee entity (immediately after giving effect to such issuance) and other than an acquisition of Parent in which the management of Parent participates in ten percent or more of the fully-diluted equity of the acquiror; or (2) a sale of all or substantially all of Parent’s assets.

  • Settlement Consideration 4.1 Subject to the procedures in Sections 6 and 7 below, and in compromise of disputed claims and in consideration of this Agreement, as well as additional consideration described in this Agreement, the Parties have agreed that in exchange for a release by the Releasing Persons of the Released Persons of Released Claims, entry of Final Judgment as contemplated herein, and dismissal with prejudice of the Action, Defendant shall make the following payments: 4.1.1 Subject to the terms, limits, conditions, coverage limits, and deductibles of policies, Class Members who timely file valid Claim Forms by the Claims Deadline will be paid Claim Settlement Payments in an amount equal to the Nonmaterial Depreciation that was withheld from ACV Payments and not subsequently paid; 4.1.2 For Class Members identified under subsections 4.1.1 above, simple interest at the rate of 6% per annum on the Nonmaterial Depreciation determined under subsections 4.1.1, from the date of each respective ACV Payment to the Effective Date; 4.1.3 For Class Members identified under subsections 4.1.1 and for whom all Nonmaterial Depreciation that was withheld from ACV Payments was subsequently paid, simple interest at the rate of 6% per annum on Nonmaterial Depreciation that was initially withheld from ACV payments, from the date of each ACV Payment from which Nonmaterial Depreciation was withheld to the date all Nonmaterial Depreciation was paid; 4.1.4 Subject to the conditions set forth in this Agreement, attorneys’ fees and expenses that are awarded by the Court to Class Counsel; 4.1.5 Subject to the conditions set forth in this Agreement, service awards that are awarded by the Court to the Representative Plaintiffs. 4.1.6 The costs of Class Notice and settlement administration, as provided in this Agreement; and 4.1.7 The reasonable fees incurred by the Neutral Evaluator, as provided in this Agreement. 4.2 Until such time as the foregoing payments are made, all sums to be paid by Defendant shall remain under the control and ownership of Defendant or Defendant’s independent contractors. Neither Class Members nor any other Person shall have any right to or ownership or expectation interest in Claim Settlement Payments or any other sums unless and until timely and eligible claims of Class Members have been submitted and checks in payment of same have been issued and timely negotiated by Class Members, as described in this Agreement. For any payment that has not been timely negotiated by a Class Member, that Class Member’s rights to that payment shall be forfeited by the Class Member, and all rights to any such payments shall be governed by the Defendant’s general escheatment procedures and in accordance with the laws of the applicable states.