Buyer shall make the third Earn-Out Payment to Seller on the first business day of the fortieth month after the Closing Date. Avoiding common negotiating mistakes when buying or selling a business in Texas is essential for a smooth transaction.This paper will address common areas of dispute involving earn-outs. An earn out agreement is a contractual agreement between the buyer and seller of a business that states that the seller will receive future payment(s). An earnout provision makes the purchase price (typically, some part of it) payable in the future dependent on the buyer's financial performance.