Earn-Out Clause Samples
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Earn-Out. Purchaser shall pay to Seller (or its designee(s)) earn-out payments with respect to the Portfolio as set forth in this Section 2.4 (the “Earn-Out Payments”).
(a) For the period commencing on August 1, 2025 and ending on July 31, 2028 (the “Earn-Out Period”), for each month Purchaser shall calculate the realized gross charge-offs (principal, finance charges and fees) (“Gross Charge-offs”) for the Portfolio (each a “Monthly Charge-off Amount”) consistent with the following:
(i) The methods for determining whether amounts should charge off and other applicable calculations shall be consistent with the methods used by Guarantor for its publicly-disclosed results for its fiscal year ending December 31, 2024, and the Earn-Out Example Calculation.
(ii) In the event that Purchaser implements a change in terms that increases the interest rate, increases the annual or monthly maintenance fees (“Fees”), or decreases rewards (a “Reprice” or “Repricing”) with respect to Accounts comprising 10% or more of the Portfolio Receivables within the Portfolio (“Repriced Accounts”), effective as of the Repricing Effective Date, Purchaser shall randomly identify 5% of the accounts within the Repriced Accounts as of the Repricing Effective Date that otherwise would be Repriced (the “Holdout Population”) and, notwithstanding the foregoing, Purchaser shall not implement a change in terms that increases the interest rate or Fees or decreases rewards with respect to the Holdout Population, nor shall the Holdout Population be subjected to any treatment or other changes other than those applied to the accounts managed by Guarantor generally, in each case until the last day of a month selected by Purchaser (of which Purchaser shall give notice to Seller prior to the fifteenth day of the following month) between the twelfth month following the Trigger Month (inclusive of the Trigger Month) and the twenty-fourth month after the Trigger Month (inclusive of the Trigger Month), and if Purchaser fails to select a month, the last day of the twenty-fourth month following the Trigger Month (inclusive of the Trigger Month) (the “Termination Date”, and the period between the beginning of the Target Month and the Termination date shall be the “Holdout Period”). For the avoidance of doubt, a Reprice shall not include changes in interest rates as a result of changes in the base amount of a floating rate interest calculation or changes in late fees. In the event that Purchaser undertakes a subsequent ...
Earn-Out. (a) Earn-Out Shares. In the event Pacific Magtron, Inc. ("PMI"), Pacific Magtron (GA), Inc. ("PMI-GA"), and LiveWarehouse, Inc. ("LW") achieve the Milestones (as defined in Section 4.3 below) for any year during the two (2) year period commencing January 1, 2005 and expiring December 31, 2006, Executive shall have the right to receive on March 31 of the immediately following calendar year, the applicable ratable portion of 33,333,333 shares of restricted common stock of ACT (priced at $.01 per share, or $333,333 in the aggregate), to be earned at the end of each such year at the rate of 50% for each year (the "Shares"); provided, that in the event the Milestones are not achieved in any year, except as provided below, such ratable portion of Shares shall be forfeited entirely, without any ability to re-earn such Shares in a future year; provided further, that in the event Executive's employment with PMIC is terminated for "cause" by PMIC (as contemplated by Section 6.1 of this Agreement) prior to the expiration of the initial Employment Period, all of the Shares earned or to be earned by Executive shall be forfeited. In the event that Executive's employment with PMIC is terminated prior to the expiration of the initial Employment Period for any reason other than "cause," Executive shall be permitted to receive the Shares earned by her prior to such termination, but shall in no event be entitled to receive Shares to be earned after the Termination Date (as defined in Section 6.1 below). Notwithstanding the foregoing, the number of Shares and the price per Share shall be adjusted accordingly for stock splits, reverse stock splits and other recapitalizations effected by ACT, so that Executive retains the right to receive, after accounting for such adjustment, the same percentage of ACT's outstanding shares of Common Stock as Executive would have had the right to receive had such adjustment not been so effected. Upon earning the Shares at the end of each year, if applicable, the Shares will be placed in escrow with a mutually agreeable escrow agent to be held and released in accordance with the terms of an escrow agreement in substantially the form of Exhibit "A" hereto; provided, however, that in the event that the employment of Executive is terminated by PMIC prior to the expiration of the initial Employment Period without cause (as contemplated by Section 6.2 of this Agreement), Executive terminates this Agreement for Good Reason (as contemplated by Section ...
Earn-Out. (a) Subject to the terms and conditions set forth in this Section 3.4, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out ...
Earn-Out. (a) Seller shall be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets:
(i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater;
(ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and
(iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater.
(b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to ...
Earn-Out. (a) Subject to the terms and conditions of this Section 1.5, Purchaser will pay to the Individuals, as additional Purchase Price for the Acquired Shares, an amount equal to three times the amount, if any, by which the total EBITDA for the 2016 fiscal year for the Companies (the “2016 EBITDA”) exceeds $15,655,477 (the “Earn Out Amount”).
(b) To determine the 2016 EBITDA amount, Purchaser’s independent public accountants will calculate, in accordance with GAAP and consistent with the same manner in which the Companies’ 2015 Audited Financial Statements were prepared, the EBITDA of each of the Companies for its 2016 fiscal year and the sum of the total EBITDA of the Companies for their 2016 fiscal year. Such calculations will be undertaken promptly after the Closing, and a copy of such final calculations will be provided to Purchaser and Equityholders’ Representative by such accountants (such final calculations being referred to as, the “Auditor’s Report”). The parties agree that the costs incurred by the Companies in 2016 that are solely related to: (i) the Companies’ responses to the due diligence requests of Purchaser; (ii) the restatement of the Companies’ financials at Purchaser’s request; and (iii) preparing to consummate the transactions contemplated by this Agreement, including the Pre-Closing Reorganization, which costs will be set forth on Schedule 1.5 and attached hereto at the Closing, shall not be deducted from the Companies’ earnings for purposes of calculating the 2016 EBITDA.
(c) Following the receipt by Equityholders’ Representative of the Auditor’s Report, Purchaser shall permit Equityholders’ Representative reasonable access during normal business hours to the books and records pertaining to the preparation of the Auditor’s Report and provide Equityholders’ Representative with copies thereof (as reasonably requested by Equityholders’ Representative) and such additional information as Equityholders’ Representative may reasonably request to confirm the Earn Out Amount. The Equityholders agree that the scope of such audit shall be reasonable and as is customary in transactions of this kind. All costs and fees incurred by the parties related to the exercise of the audit right shall be borne by each of the respective parties. If the parties fail to mutually agree on the Earn Out Amount after 30 days following the receipt of the Auditor’s Report by Equityholders’ Representative, then the parties shall submit the issues then-remaining in dispute t...
Earn-Out. (a) Subject to the terms and conditions of this Section 2.6, the Earn Out Units shall be issuable to the Company Equity Holders in accordance with the terms of Section 2.2 as follows (any such issuable Earn Out Units, “Earned Earn Out Units”):
(i) if at any time during the twelve (12) months following the Closing the VWAP of the Surviving Pubco Class A Shares is greater than or equal to $12.50 over any twenty (20) Trading Days within any thirty- (30-) Trading Day period, 50% of the Earn Out Units; and
(ii) if at any time during the twenty-four (24) months following the Closing the VWAP of the Surviving Pubco Class A Shares is greater than or equal to $14.00 over any 20 Trading Days within any 30-Trading Day period, 100% of the Earn Out Units. Notwithstanding anything to the contrary set forth in this Agreement, the number of Earn Out Units to be issued pursuant to this Section 2.6 shall be limited such that in no event shall the Company Equity Holders receive more than 100% of the Earn Out Units. The Surviving Pubco Class A Share price targets in clauses (i) and (ii) shall be equitably adjusted for stock splits, stock dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the Surviving Pubco Class A Shares after the date of this Agreement (other than in respect of issuances of Surviving Pubco Class A Shares in connection with (i) any Additional Equity Financing or (ii) the issuance of the Equity Consideration (including the Estimated Equity Consideration)).
(b) In the event of the satisfaction of the threshold set forth in Section 2.6(a)(i) or the threshold set forth in Section 2.6(a)(ii), as soon as practicable (but in any event within five (5) Business Days) after such satisfaction, the Surviving Pubco will deliver to the Company Securityholder Representative a written statement (each, a “Stock Price Earn-Out Statement”) that sets forth (i) the VWAP over the applicable 20-Trading Day period and (ii) the calculation of the amount of Earned Earn Out Units in connection therewith. Any Earned Earn Out Units issuable as a result of the satisfaction of the threshold set forth in Section 2.6(a)(i) or the threshold set forth in Section 2.6(a)(ii) shall be issued to the Company Equity Holders in accordance with Section 2.2 and the Earn Out Payout Schedule within five (5) Business Days after such satisfaction.
(c) Following the Closing, including during the twenty-four (24) months following the Closing, the Surviving Pubco a...
Earn-Out. A. Each Sponsor agrees that the number of HMAUF Shares owned by such Sponsor and set forth opposite such Sponsor’s name in the column captioned “Earn-Out Shares” on Exhibit A (the “Earn-Out Shares”) shall be forfeited and cancelled unless the First Earn-Out Milestone is met or the Second Earn-Out Milestone is met. Each Sponsor agrees to enter into the Escrow Agreement with the Escrow Agent, the Sellers and the Company simultaneously with the Closing.
B. At the Closing, each Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent shall transfer and deliver to the Escrow Agent under the Escrow Agreement such Sponsor’s Earn-Out Shares. At the Closing, each Sponsor whose HMAUF Shares are held by the IPO Escrow Agent shall deliver irrevocable instructions to the IPO Escrow Agent to deliver to the Escrow Agent such Sponsor’s Earn-Out Shares at the time such Earn-Out Shares would otherwise be delivered to such Sponsor under the IPO Escrow Agreement. At the Closing, each Sponsor shall deliver to the Escrow Agent all stock powers, assignments and related documents as may be necessary to effect the transfer to the Company and cancellation of such Sponsor’s Earn-Out Shares.
C. If the First Earn-Out Milestone is met, each Sponsor shall be entitled to receive such Sponsor’s Earn-Out Shares on the First Earn-Out Milestone Date. If the First Earn-Out Milestone is not met but the Second Earn-Out Milestone is met, each Sponsor shall be entitled to receive such Sponsor’s Earn-Out Shares on the Second Earn-Out Milestone Date. If neither the First Earn-Out Milestone nor the Second Earn-Out Milestone is met, all of the Earn-Out Shares shall be forfeited to the Company and cancelled. The Earn-Out Shares shall be released to the Sponsors or the Company at the times and in the manner provided in the Escrow Agreement.
Earn-Out. (i) The Company Securityholders shall be entitled to receive the Earn Out Payments set forth on the Earn Out Plan attached hereto as Exhibit A, payable in cash on such dates as set forth therein, in each case reduced by any employer-paid portion of any employment and payroll Taxes related to the portion of such payment paid in respect of Company Options. The parties acknowledge and agree that no separate cash payment of interest will be made by Purchaser with respect to the Earn Out Amount, and Purchaser shall have no liability whatsoever with respect to any Tax obligations of the Company Securityholders with respect to any Imputed Interest. Purchaser shall determine the amount of any such Imputed Interest to be reported to the appropriate Taxing Authority and shall deliver a copy of such determination and calculations to the Representative for review and comment.
(ii) On the date of each Earn Out Payment, Purchaser shall pay to the Paying Agent for distribution to the Company Securityholders the aggregate amount of the Earn Out Payment payable on such date. As soon as reasonably practicable, Purchaser (in consultation with, and subject to the reasonable approval of, the Representative) shall calculate the aggregate Merger Consideration that each Company Securityholder is entitled to receive pursuant to this Agreement as of such time (after giving effect to such Earn Out Payment and including all prior payments of Merger Consideration, including Closing Merger Consideration, any prior Earn Out Payments and any prior releases of the Escrow Amount to the Company Securityholders) (such aggregate Merger Consideration being referred to herein as a Company Securityholder’s “Accrued Merger Consideration”). Purchaser and the Representative shall deliver to the Paying Agent a calculation, on an individual Company Securityholder basis, of (A) the Accrued Merger Consideration for each Company Securityholder minus (B) the aggregate amount of all payments of Merger Consideration previously made to such Company Securityholder, and instruct the Paying Agent to disburse to each Company Securityholder such difference within three (3) Business Days of receiving the Earn Out Payment from Purchaser and such calculations.
Earn-Out. (a) As additional consideration for the Company Interests, at such times as provided in this Section 2.12, Parent shall pay to Sellers an additional payment of up to One Million Four Hundred Forty-Three Thousand Two Hundred Ninety-Three (1,443,293) Parent Shares (the “Earn-out Payment”) contingent upon the Company together with PurePenn achieving certain aggregate EBITDA during the 2021 calendar year (the “Earn-out Period”) as follows: EBITDA during Earn-Out Period Earn-out Payment 70% of the Projected EBITDA Amount 753,360 Parent Shares > 70% of the Projected EBITDA Amount and < Between 753,360 Parent Shares and 93.53% of the Projected EBITDA Amount 1,443,293 Parent Shares, on a proportionate basis. >93.53% of the Projected EBITDA Amount 1,443,293 Parent Shares For the avoidance of doubt, no Earn-out Payment shall be payable hereunder in the event that combined EBITDA for the Company and PurePenn for the Earn-out Period is less than seventy percent (70%) of the Projected EBITDA Amount during the Earn-out Period. The Parties acknowledge and agree that the value of any Earn-out Payment shall be reduced, dollar for dollar, by sixty percent (60%) of the amount of any Trulieve Capital Improvements Expenses with, for the purposes of this sentence only, each Parent Share being equal to the value of a Consideration Share.
(b) If the combined EBITDA for the Company and PurePenn during the Earn-out Period is equal to or greater than one hundred ten percent (110%) of the Projected EBITDA Amount for the Earn-out Period, then Parent shall issue to Sellers a bonus payment of 300,205 Parent Shares (the “Bonus Earn-out Payment”).
(c) PurePenn has previously applied for a Pennsylvania Redevelopment Assistance Capital Program grant (a “PA RACP Grant”) as described in the PurePenn Agreement for the reimbursement of PurePenn expenses incurred in connection with capital improvements (the “Grant Funds”). If the PA RACP Grant is awarded to PurePenn, Parent shall pay, ten (10) Business Days after receipt of Grant Funds, to each Seller, a cash payment equal to such Seller’s Pro Rata Share of sixty percent (60%) of the amount of the Grant Funds actually received by PurePenn under such PA RACP Grant award (collectively with the Earn-out Payment and the Bonus Earn-out Payment, the “Post-Closing Payments”).
Earn-Out. Nothing in this Agreement shall affect Executive's right to Earn-Out payments under the Stock Purchase Agreement.