Corp-Buyer": The earnout in the final purchase agreement only covers 802.11 and Smart Antenna patents. In addition there appears to be a cap on the earnout.
The “Earn-Out” shall also include (y) four percent (4%) of any Consideration attributable to the sale or assignment of all or substantially all of the 802.11 Patents and (z) one percent (1%) of any Consideration attributable to the sale or assignment of all or substantially all of the Smart Antenna Patents, in each case that (A) the Buyer has not elected to assign the Earn-Out obligations described in paragraphs (i) through (iii) of this Section 2.02(b) in connection with such sale as described in Section 8.01 hereof and (B) such sale is consummated on or prior to December 31, 2009. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall not be obligated to include the 802.11 or Smart Antenna Patents in any license granted by them.
“Consideration” means (a) gross cash received, plus (b) the fair market value of any securities received, plus (c) the value of any non-cash consideration received (as valued by Buyer, in its good faith discretion); provided, however, that the aggregate non-cash consideration (i) shall not exceed $250,000 received with respect to each Qualifying License during the period in which any Earn-Out is payable and (ii) shall not exceed $4,000,000 received from the sale(s) of all or substantially all of the 802.11 Patents or $4,000,000 received from the sale(s) of all or substantially all of the Smart Antenna Patents.
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