Performance Payments. (a) Following the Closing and as additional consideration for the Shares, the Seller shall be entitled to receive from the Purchaser (subject to the terms and conditions set forth in this Section 1.6) additional amounts based on the Acquired Companies’ performance during (i) the twelve-month period ending December 31, 2012 (the “First Performance Period”) and (ii) the twelve-month period ending December 31, 2013 (the “Second Performance Period”, and together with the First Performance Period, the “Performance Periods”). The amount (if any) paid with respect to (A) the First Performance Period (the “First Performance Payment”) and (B) the Second Performance Period (the “Second Performance Payment”, and together with the First Performance Payment, the “Performance Payments”) shall each be determined in accordance with this Section 1.6 and shall be paid to the Seller pursuant to the terms of Section 1.6(c) below. (b) The amount of the Performance Payments shall be determined as set forth in this Section 1.6(b). (i) If the Revenue during the First Performance Period (including any Revenue for the period prior to Closing) is (A) [*****], the First Performance Payment will be [*****], or (B) [*****], the First Performance Payment will be [*****]. (ii) If the Revenue during the Second Performance Period is (A) [*****], the Second Performance Payment will be [*****], or (B) [*****], the Second Performance Payment will be $10,000,000 less the amount paid pursuant to Section 1.6(b)(i) (if any). (c) On or before (i) the later of (A) March 31, 2013 and (B) forty-five (45) calendar days following the Closing Date (with respect to the First Performance Period), (ii) March 31, 2014 (with respect to the Second Performance Period) and (iii) sixty (60) days following the consummation of a Divestiture, if applicable, the Purchaser shall deliver to the Seller a calculation setting forth in reasonable detail in light of the facts then known the Revenue for the First Performance Period (the “2012 Revenue Statement”), the Revenue for the Second Performance Period (the “2013 Revenue Statement”), or the Revenue for the portion of the applicable Performance Period through the date of Divestiture (the “Divestiture Revenue Statement”), in each case, listing Revenue by country, by month and, if applicable, listing additions to and deductions from Revenue, by country, by month and by category (in accordance with the definition of Revenue) and listing the Currency Conversion Rates used in each case. Following the delivery of the 2012 Revenue Statement, the 2013 Revenue Statement or, if applicable, the Divestiture Revenue Statement, the Purchaser shall provide the Seller and its Representatives reasonable access, during regular business hours, in such a manner not to interfere with the normal operations of the Purchaser and its Affiliates, to the (subject to the execution of customary work paper access letters, if requested) work papers and the books and records relating to the preparation of the 2012 Revenue Statement, the 2013 Revenue Statement or, as applicable, the Divestiture Revenue Statement, solely for purposes of assisting the Seller in its review, as applicable, of the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement. Not later than forty-five (45) days after the date on which the Purchaser delivers the 2012 Revenue Statement, the 2013 Revenue Statement or, if applicable, the Divestiture Revenue Statement to the Seller (as applicable, the “Lapse Date”), the Seller shall have the right to dispute, as applicable, any part of the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement by delivering a written notice to that effect to the Purchaser (a “Statement Dispute Notice”). Any Statement Dispute Notice must set forth in reasonable detail (in light of the facts then known to the Seller) the nature and amount of any proposed revisions to, as applicable, the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement, including for each item in dispute, in light of the facts then known to the Seller, Seller’s basis for so disputing and Seller’s alternative calculation of the disputed amounts, together in each case with reasonable detailed supporting documentation. Any item or amount that the Seller does not dispute in reasonable detail in light of the facts then known to the Seller in a Statement Dispute Notice by the applicable Lapse Date shall be final, binding and conclusive for all purposes hereunder. If on or prior to the applicable Lapse Date, (1) the Seller notifies the Purchaser that it has no objections to, as applicable, the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement or (2) the Seller fails to deliver a Statement Dispute Notice by the applicable Lapse Date, then the 2012 Revenue Statement, 2013 Revenue Statement or the Divestiture Revenue Statement, as applicable, shall be deemed, on the date of such notification (in the case of (1) above) or on the Lapse Date (in the case of (2) above), to have been finally determined for purposes of this Agreement. If the Seller delivers the Statement Dispute Notice, prepared in accordance with this Section 1.6(c), on or prior to the applicable Lapse Date, then the Seller and the authorized Representatives of the Purchaser shall promptly meet and use commercially reasonable efforts for a period of fifteen (15) days (or such longer period that the parties may mutually agree) to resolve the disputed item(s) and negotiate a final determination thereof. In the event that, on the date that is fifteen (15) days following the date on which the Seller delivered the applicable Statement Dispute Notice, the Seller and the authorized Representatives of the Purchaser remain unable to resolve the dispute, the dispute may be submitted to the Dispute Auditor by either party. The Dispute Auditor shall determine, based solely on the provisions of this Section 1.6(c) and the presentations by the Seller and the Purchaser, and not by independent review, only those issues that remain then in dispute as set forth in the Statement Dispute Notice prepared and delivered in accordance with this Section 1.6(c). The Dispute Auditor’s determination, which shall include its determination of the 2012 Revenue and/or the 2013 Revenue, as applicable, to the extent such items are disputed, shall be made within forty-five (45) days after the dispute is submitted for its determination and shall be set forth in a written statement delivered to the Seller and the Purchaser. A judgment of a court of competent jurisdiction selected pursuant to Section 9.6 hereof may be entered upon the Dispute Auditor’s determination. The Dispute Auditor shall have exclusive jurisdiction over, and resorting to the Dispute Auditor as provided in this Section 1.6(c) shall be the only recourse and remedy of the parties against one another with respect to those issues that remain in dispute within the scope of the third immediately proceeding sentence of this Section 1.6(c). The fees and expenses of the Dispute Auditor shall be borne by (i) the Purchaser if the Dispute Auditor determines that the applicable Performance Payment is due and payable to the Seller and (ii) the Seller if the Dispute Auditor determines that the applicable Performance Payment is not due and payable to the Seller. Any determinations made by the Dispute Auditor pursuant to this Section 1.6(c) shall be final, non-appealable and binding on the parties hereto, absent manifest error, gross negligence or fraud. (d) The Purchaser shall cause to be prepared and delivered to the Seller a statement (the “Interim Revenue Statement”) with respect to the five month period ending on May 31, 2013 setting forth a calculation of Revenue for such period by country, by month and, if applicable, additions to and deductions from Revenue, by country, by month and by category (in accordance with the definition of Revenue), and setting forth the Currency Conversion Rates used in each case. The Interim Revenue Statement shall be delivered no later than August 31, 2013. The Interim Revenue Statement shall be solely for information purposes and shall have no force or effect with respect to the 2013 Revenue Statement or any Divestiture Revenue Statement, including any adjustments made to the 2013 Revenue Statement or any Divestiture Revenue Statement that would alter the calculations set forth in the Interim Revenue Statement. Seller shall not have any right to object to or dispute any part of the Interim Revenue Statement, provided, however, that such lack of right to object to or dispute any part of the Interim Revenue Statement shall not affect in any way the right of the Seller to object to the 2013 Revenue Statement or any Divestiture Revenue Statement as provided in Section 1.6(c) above. (e) In the event that prior to December 31, 2013, the Purchaser, or any Affiliate of the Purchaser, or any of their respective partners, members or shareholders, consummate, or cause to be consummated, a transaction or series of related transactions (other than a public offering of Equity Interests of the Purchaser or its direct or indirect parents) pursuant to which (x) all or substantially all of the assets of the Acquired Companies are sold or transferred to a non-Affiliate of the Purchaser, or (y) a non-Affiliate of the Purchaser acquires directly or indirectly, a majority of the Equity Interests of the Acquired Companies (whether by merger, consolidation, or acquisition of Equity Interests of the Acquired Companies or otherwise) (each, a “Divestiture”), then Revenue shall be calculated as follows: (i) If consummation of the Divestiture occurs on or prior to December 31, 2012, then (A) [*****]. (ii) If the consummation of the Divestiture occurs after December 31, 2012 and prior to December 31, 2013, then Revenue as calculated [*****]. (f) During the period from the Closing until the date of the final determination of whether any Second Performance Payment is payable to the Seller, the Purchaser shall maintain books and records relating to Revenues that are true, accurate and complete in all material respects. (g) If any Performance Payment is determined to be payable pursuant to this Section 1.6, then promptly, and in any event no later than ten (10) business days after the final determination of such Performance Payment, the Purchaser shall pay such Performance Payment to the Seller by wire transfer of immediately available funds to an account specified by Seller. (h) The right of the Seller to receive any Performance Payment (i) is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Seller only the rights of a general unsecured creditor under applicable state law); (ii) will not be represented by any form of certificate or instrument; (iii) does not give the Seller any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Purchaser’s equity interests; (iv) is not redeemable; and (v) may not be sold, assigned, gifted, conveyed, transferred or otherwise disposed of (a “Transfer”) (and any Transfer in violation of this Section 1.6(h) shall be null and void). Notwithstanding the foregoing, the Seller may transfer its rights to receive any Performance Payment to any Affiliate or to any Person who purchases all or substantially all of the assets of the Seller or a majority of the equity interests of the Seller (whether by merger, consolidation, acquisition of equity interests or otherwise) and nothing herein shall limit the Seller’s ability to pledge such rights to any creditor who has a security interest in all or substantially all of the Seller’s assets.
Appears in 1 contract
Performance Payments. (a) Following the Closing and as additional consideration for the Shares, the Seller shall be entitled to receive from the Purchaser (subject Subject to the terms and conditions set forth in this Section 1.6) 1.06, following the Closing, Sellers shall be entitled to receive from Purchaser, and Purchaser shall pay to Sellers (in accordance with their Pro Rata Ownership Percentages), additional amounts based on the Acquired Companies’ performance of the Company during each of (i) the twelve-month period fiscal year ending December 31, 2012 2023 (the “"First Performance Period”) and "), (ii) the twelve-month period fiscal year ending December 31, 2013 2024 (the “"Second Performance Period”") and (iii) the fiscal year ending December 31, 2025 (the "Third Performance Period" and together with the First Performance Period and the Second Performance Period, the “"Performance Periods”"). The aggregate amount (if any) paid with respect to (A) the First Performance Period (the “"First Performance Payment”) and (B) "), the Second Performance Period (the “"Second Performance Payment”, ") and the Third Performance Period (the "Third Performance Payment" and together with the First Performance Payment and Second Performance Payment, the “"Performance Payments”") shall each be determined in accordance with this Section 1.6 and 1.06. Each Performance Payment shall be paid to the Seller pursuant to the terms of Section 1.6(c) below.
(b) The amount of the Performance Payments shall be determined as set forth in this Section 1.6(b).
(i) If the Revenue during the First Performance Period (including any Revenue for the period prior to Closing) is (A) [*****], the First Performance Payment will be [*****], or (B) [*****], the First Performance Payment will be [*****].
(ii) If the Revenue during the Second Performance Period is (A) [*****], the Second Performance Payment will be [*****], or (B) [*****], the Second Performance Payment will be $10,000,000 less the amount paid pursuant to Section 1.6(b)(i) (if any).
at all) to Sellers within thirty (c) On or before (i) the later of (A) March 31, 2013 and (B) forty-five (45) calendar days following the Closing Date (with respect to the First Performance Period), (ii) March 31, 2014 (with respect to the Second Performance Period) and (iii) sixty (60) days following the consummation of a Divestiture, if applicable, the Purchaser shall deliver to the Seller a calculation setting forth in reasonable detail in light of the facts then known the Revenue for the First Performance Period (the “2012 Revenue Statement”), the Revenue for the Second Performance Period (the “2013 Revenue Statement”), or the Revenue for the portion of the applicable Performance Period through the date of Divestiture (the “Divestiture Revenue Statement”), in each case, listing Revenue by country, by month and, if applicable, listing additions to and deductions from Revenue, by country, by month and by category (in accordance with the definition of Revenue) and listing the Currency Conversion Rates used in each case. Following the delivery of the 2012 Revenue Statement, the 2013 Revenue Statement or, if applicable, the Divestiture Revenue Statement, the Purchaser shall provide the Seller and its Representatives reasonable access, during regular business hours, in such a manner not to interfere with the normal operations of the Purchaser and its Affiliates, to the (subject to the execution of customary work paper access letters, if requested) work papers and the books and records relating to the preparation of the 2012 Revenue Statement, the 2013 Revenue Statement or, as applicable, the Divestiture Revenue Statement, solely for purposes of assisting the Seller in its review, as applicable, of the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement. Not later than forty-five (4530) days after the date on which the Purchaser delivers the 2012 Revenue Statement, the 2013 Revenue Statement or, if applicable, the Divestiture Revenue Statement to the Seller (as applicable, the “Lapse Date”), the Seller shall have the right to dispute, as applicable, any part of the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement by delivering a written notice to that effect to the Purchaser (a “Statement Dispute Notice”). Any Statement Dispute Notice must set forth in reasonable detail (in light of the facts then known to the Seller) the nature and amount of any proposed revisions to, as applicable, the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement, including for each item in dispute, in light of the facts then known to the Seller, Seller’s basis for so disputing and Seller’s alternative calculation of the disputed amounts, together in each case with reasonable detailed supporting documentation. Any item or amount that the Seller does not dispute in reasonable detail in light of the facts then known to the Seller in a Statement Dispute Notice by the applicable Lapse Date shall be final, binding and conclusive for all purposes hereunder. If on or prior to the applicable Lapse Date, (1) the Seller notifies the Purchaser that it such Performance Payment has no objections to, as applicable, the 2012 Revenue Statement, the 2013 Revenue Statement or the Divestiture Revenue Statement or (2) the Seller fails to deliver a Statement Dispute Notice by the applicable Lapse Date, then the 2012 Revenue Statement, 2013 Revenue Statement or the Divestiture Revenue Statement, as applicable, shall be deemed, on the date of such notification (in the case of (1) above) or on the Lapse Date (in the case of (2) above), to have been finally determined for purposes of this Agreement. If the Seller delivers the Statement Dispute Notice, prepared in accordance with this Section 1.6(c), on or prior to the applicable Lapse Date, then the Seller and the authorized Representatives of the Purchaser shall promptly meet and use commercially reasonable efforts for a period of fifteen (15) days (or such longer period that the parties may mutually agree) to resolve the disputed item(s) and negotiate a final determination thereof. In the event that, on the date that is fifteen (15) days following the date on which the Seller delivered the applicable Statement Dispute Notice, the Seller and the authorized Representatives of the Purchaser remain unable to resolve the dispute, the dispute may be submitted to the Dispute Auditor by either party. The Dispute Auditor shall determine, based solely on the provisions of this Section 1.6(c) and the presentations by the Seller and the Purchaser, and not by independent review, only those issues that remain then in dispute as set forth in the Statement Dispute Notice prepared and delivered in accordance with this Section 1.6(c). The Dispute Auditor’s determination, which shall include its determination of the 2012 Revenue and/or the 2013 Revenue, as applicable, to the extent such items are disputed, shall be made within forty-five (45) days after the dispute is submitted for its determination and shall be set forth in a written statement delivered to the Seller and the Purchaser. A judgment of a court of competent jurisdiction selected pursuant to Section 9.6 hereof may be entered upon the Dispute Auditor’s determination. The Dispute Auditor shall have exclusive jurisdiction over, and resorting to the Dispute Auditor as provided in this Section 1.6(c) shall be the only recourse and remedy of the parties against one another with respect to those issues that remain in dispute within the scope of the third immediately proceeding sentence of this Section 1.6(c). The fees and expenses of the Dispute Auditor shall be borne by (i) the Purchaser if the Dispute Auditor determines that the applicable Performance Payment is due and payable to the Seller and (ii) the Seller if the Dispute Auditor determines that the applicable Performance Payment is not due and payable to the Seller. Any determinations made by the Dispute Auditor pursuant to this Section 1.6(c) shall be final1.06, non-appealable and binding on the parties hereto, absent manifest error, gross negligence or fraud.
(d) The Purchaser shall cause to be prepared and delivered to the Seller a statement (the “Interim Revenue Statement”) with respect to the five month period ending on May 31, 2013 setting forth a calculation of Revenue for such period by country, by month and, if applicable, additions to and deductions from Revenue, by country, by month and by category (in accordance with the definition of Revenue), and setting forth the Currency Conversion Rates used in each case. The Interim Revenue Statement shall be delivered no later than August 31, 2013. The Interim Revenue Statement shall be solely for information purposes and shall have no force or effect with respect to the 2013 Revenue Statement or any Divestiture Revenue Statement, including any adjustments made to the 2013 Revenue Statement or any Divestiture Revenue Statement that would alter the calculations set forth in the Interim Revenue Statement. Seller shall not have any right to object to or dispute any part of the Interim Revenue Statement, provided, however, that such lack of right to object to or dispute any part of the Interim Revenue Statement shall not affect in any way the right of the Seller to object to the 2013 Revenue Statement or any Divestiture Revenue Statement as provided in Section 1.6(c) above.
(e) In the event that prior to December 31, 2013, the Purchaser, or any Affiliate of the Purchaser, or any of their respective partners, members or shareholders, consummate, or cause to be consummated, a transaction or series of related transactions (other than a public offering of Equity Interests of the Purchaser or its direct or indirect parents) pursuant to which (x) all or substantially all of the assets of the Acquired Companies are sold or transferred to a non-Affiliate of the Purchaser, or (y) a non-Affiliate of the Purchaser acquires directly or indirectly, a majority of the Equity Interests of the Acquired Companies (whether by merger, consolidation, or acquisition of Equity Interests of the Acquired Companies or otherwise) (each, a “Divestiture”), then Revenue shall be calculated as follows:
(i) If consummation of the Divestiture occurs on or prior to December 31, 2012, then (A) [*****].
(ii) If the consummation of the Divestiture occurs after December 31, 2012 and prior to December 31, 2013, then Revenue as calculated [*****].
(f) During the period from the Closing until the date of the final determination of whether any Second Performance Payment is payable to the Seller, the Purchaser shall maintain books and records relating to Revenues that are true, accurate and complete in all material respects.
(g) If any Performance Payment is determined to be payable pursuant to this Section 1.6, then promptly, and in any event no later than ten (10) business days after the final determination of such Performance Payment, the Purchaser shall pay such Performance Payment to the Seller by wire transfer of immediately available funds to an account specified or accounts designated by SellerSellers' Representative within five (5) days after the determination thereof.
(hb) The right aggregate amount of the Seller to receive any First Performance Payment shall be calculated as set forth in this Section 1.06(b).
(1) If the First Revenue Amount is greater than or equal to $[***], then the First Performance Payment will be $[***].
(2) If the First Revenue Amount is less than $[***] but greater than $[***], then the First Performance Payment will be equal to the sum of (i) is solely a contractual right $[***] and is not a security for purposes of any federal or state securities laws (and shall confer upon the Seller only the rights of a general unsecured creditor under applicable state law); (ii) the product of (A) $[***] and (B) a fraction, (I) the numerator of which is (x) the First Revenue Amount minus (y) $[***], and (II) the denominator of which is $[***].
(3) If the First Revenue Amount is equal to $[***], then the First Performance Payment will be $[***].
(4) If the First Revenue Amount is less than $[***], then the First Performance Payment will be $0.
(5) In no event shall the First Performance Payment made pursuant to this Section 1.06(b) exceed $[***]. For illustrative purposes, if the First Revenue Amount is $[***], then the First Performance Payment will be $[***] (i.e., $[***] + $[***] x (($[***]. - $[***]) / ($[***]))).
(c) The aggregate amount of the Second Performance Payment shall be calculated as set forth in this Section 1.06(c).
(1) Subject to Section 1.06(c)(5), if the Second Revenue Amount is greater than or equal to $[***], then the Second Performance Payment will be $[***].
(2) If the Second Revenue Amount is less than $[***] but greater than $[***], then the Second Performance Payment will be equal the sum of (i) $[***] and (ii) the product of (A) $[***] and (B) a fraction, (I) the numerator of which is (x) the Second Revenue Amount minus (y) $[***], and (II) the denominator of which is $[***].
(3) If the Second Revenue Amount is equal to $[***], then the Second Performance Payment will be $[***].
(4) If the Second Revenue Amount is less than $[***], then the Second Performance Payment will be $0.
(5) If and only if (i) the Second Revenue Amount is greater than $[***] and (ii) the First Performance Payment is less than $[***], then the Second Performance Payment shall be increased by an amount equal to an amount calculated pursuant to the illustrative calculations attached hereto as Exhibit C.
(6) In no event shall the Second Performance Payment made pursuant to (i) this Section 1.06(c) (excluding Section 1.06(c)(5)) exceed $[***] and (ii) Section 1.06(c)(5) exceed an amount equal to $[***] minus the First Performance Payment. For illustrative purposes, if the Second Revenue Amount is $[***], then the Second Performance Payment will be $[***] (i.e., $[***] + $[***] x (($[***]. - $[***]) / ($[***]))).
(d) The aggregate amount of the Third Performance Payment shall be calculated as set forth in this Section 1.06(d).
(1) Subject to Section 1.06(d)(5), if the Third Revenue Amount is greater than or equal to $[***], then the Third Performance Payment will be $[***].
(2) If the Third Revenue Amount is less than $[***] but greater than $[***], then the Third Performance Payment will be equal the sum of (i) $[***] and (ii) the product of (A) $[***] and (B) a fraction, (I) the numerator of which is (x) the Third Revenue Amount minus (y) $[***], and (II) the denominator of which is $[***].
(3) If the Third Revenue Amount is equal to $[***], then the Third Performance Payment will be $[***].
(4) If the Third Revenue Amount is less than $[***], then the Third Performance Payment will be $0.
(5) If and only if (i) the Third Revenue Amount is greater than $[***] and (ii)(x) the sum of First Performance Payment plus any amounts paid pursuant to Section 1.06(c)(5) is less than $[***] and/or (y) the Second Performance Payment is less than $[***], then the Third Performance Payment shall be increased by an amount equal to an amount calculated pursuant to the illustrative calculations attached hereto as Exhibit C.
(6) In no event shall the Third Performance Payment made pursuant to (i) this Section 1.06(d) (excluding Section 1.06(d)(5)) exceed $[***] and (ii) Section 1.06(d)(5) exceed an amount equal to $[***], minus the First Performance Payment, minus any amounts paid pursuant to Section 1.06(c)(5), minus the Second Performance Payment. For illustrative purposes, if the Third Revenue Amount is $[***], then the Third Performance Payment will be $[***] (i.e., $[***] + $[***] x (($[***]. - $[***]) / ($[***]))).
(e) Within five (5) days of completion of the Company's stand-alone financial statements for a Performance Period, Purchaser shall deliver to Sellers' Representative (i) a copy of such financial statements, and (ii) based on such financial statements, a statement (each, a "Performance Payment Statement") that sets forth Purchaser's good faith determination of Revenue for such Performance Period and the Performance Payment resulting therefrom, in each case prepared in accordance with definitions set forth in this Agreement and this Section 1.06. During the thirty (30) day period immediately following Sellers' Representative's receipt of the Performance Payment Statement, upon reasonable request, Purchaser shall permit Sellers' Representative to have reasonable access to Purchaser's and its accountants' (subject to entering into customary access letters) books, records and other documents (including work papers, if any) pertaining to or used in connection with preparation of the Performance Payment Statement and the calculations of the Revenue for such Performance Period and the Performance Payment, and provide Purchaser with copies thereof as reasonably necessary. If Sellers' Representative disagrees with Purchaser's calculations of the Revenue or the Performance Payment, in each case as set forth on the Performance Payment Statement, Sellers' Representative shall, within thirty (30) days after Sellers' Representative's receipt of the Performance Payment Statement, notify Purchaser in writing of such disagreement by setting forth Sellers' Representative's calculations of the Revenue and the Performance Payment and describing in reasonable detail the basis for such disagreement (a "Performance Objection Notice"). If no Performance Objection Notice is delivered on or prior to the thirtieth (30th) day after Sellers' Representative's receipt of the Performance Payment Statement, then Purchaser's calculations of the Revenue and the Performance Payment shall be deemed to be final and binding on the parties hereto. If a Performance Objection Notice is timely delivered to Purchaser, Sellers' Representative and Purchaser shall negotiate in good faith to resolve any objections set forth in the Performance Objection Notice, but if they do not be represented by reach a final resolution within twenty (20) days after the delivery of the Performance Objection Notice, Sellers' Representative and Purchaser shall submit such dispute to the Valuation Firm for resolution in accordance with the procedures set forth in Section 1.04 and on Exhibit B.
(f) If at any form time from the date hereof until the expiration of certificate the Third Performance Period, the Company acquires a company or instrument; (iii) does not give the Seller any dividend rights, voting rights, liquidation rights, preemptive rights business or other rights common to holders Person or product line or other material assets through merger, stock purchase, asset purchase or otherwise, then (i) the determination of the Purchaser’s equity interests; (iv) is Revenue shall not redeemable; include any costs, expense, losses, revenues, income, synergies or gains resulting from such acquisition or the company, business or assets so acquired, and (vii) may not be soldfrom the date of such transaction through the expiration of the Third Performance Period, assignedthe Company shall maintain separate books of account for the acquired business or assets or implement such other commercially reasonable steps, gifted, conveyed, transferred or otherwise disposed in each case as necessary to enable calculation of the exclusions contemplated by clause (a “Transfer”i) (and any Transfer in violation of this Section 1.6(h1.06(f).
(g) For purposes of the determination of Revenue pursuant to this Section 1.06, if any Existing Enzyme Products are purchased directly from the Company by Purchaser or any Subsidiary or Affiliate of Purchaser (each, an "Enzyme Buyer"), the Enzyme Buyer will issue to the Company a purchase order for, and the Company shall be null and void)sell to such Enzyme Buyer, such Existing Enzyme Product(s) at a [***]% discount to the price as currently quoted to such Enzyme Buyer for such Existing Enzyme Product from a reputable U.S. manufacturer of such product listed on Exhibit J attached hereto. Notwithstanding the foregoing, where Existing Enzyme Products will be purchased by an Enzyme Buyer for OEM or resale applications, the Seller may transfer its rights to receive any Performance Payment to any Affiliate or to any Person who purchases all or substantially all prior sentence shall not apply and such Enzyme Buyer and the Company shall negotiate in good faith the terms and conditions of the assets of the Seller or a majority of the equity interests of the Seller (whether by mergersuch purchase(s), consolidationincluding, acquisition of equity interests or otherwise) without limitation, cost and nothing herein shall limit the Seller’s ability to pledge such rights to any creditor who has a security interest in all or substantially all of the Seller’s assetsquantities.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dyadic International Inc)