Common use of Contingent Account True-Up Clause in Contracts

Contingent Account True-Up. (i) If any Contingent Account exists at the Closing Measurement Date and either (x) if such Contingent Account is required by applicable Law or the terms of the Investment Advisory Arrangement applicable thereto to provide consent to the transactions contemplated hereby to enter into a New Advisory Contract or to obtain investor approval of a New Advisory Contract in order for such New Advisory Contract to remain in effect beyond the True-Up Period or become effective in order for the Transferred Entities to continue providing investment advisory services to such account after the Closing, and such Contingent Account has on the date that is 150 days following the Closing (the 150 day period, the “True-Up Period”), not previously granted such consent (including by way of negative consents), not entered into a New Advisory Contract or not obtained such investor approval, as the case may be, or (y) if such Contingent Account (other than any Contingent Account covered in clause (x) above) has terminated the applicable Existing Advisory Contract prior to the end of the True-Up Period or has provided to Buyer or one of its Affiliates (including the Transferred Entities) effective notice of termination of the applicable Existing Advisory Contract (such accounts described in clauses (x) and (y) being “Remaining Contingent Accounts”), then promptly following the Contingent Account Resolution (I) Seller shall, at its sole election, either (A) return to Buyer such number of shares of, at Seller’s election, the Buyer Series B Preferred Stock or the Buyer Series D Preferred Stock equal to the quotient obtained by dividing (i) the amount by which the Revenue Run Rate Adjustment Amount would have become positive or increased, if any, if any such remaining Contingent Accounts were treated as Contingent Accounts for purposes of calculating Adjusted Assets Under Management and the Revenue Run Rate Adjustment Amount in respect of the Closing by (ii) the Reference Price or (B) pay to Buyer an amount in cash equal to the amount calculated by clause (A)(i); or (II) Buyer shall issue to Seller or its designee such number of shares of the Buyer Series B Preferred Stock equal to the quotient obtained by dividing (A) the amount, if any, by which the Revenue Run Rate Adjustment Amount as determined for purposes of the Closing exceeds the Revenue Run Rate Adjustment Amount as determined following the Contingent Account Resolution by (B) the Reference Price; provided that any fractional share amount shall be paid in cash on the basis of an amount determined by reference to the Reference Price; provided further, that if such issuance were made at the Closing and would have resulted in Deficit Shares then the provisions of Section 2.2(b) shall apply to such shares; and provided further, that if the Contingent Account Resolution occurs after the termination of the Resolution Period or, if later, the date of determination of the Unresolved Items pursuant to Section 2.3(a)(iv) above, interest shall be added to the amount of any payment required by this Section 2.3(a) at the annual rate, calculated daily on the basis of a 360 day year, of 5%. Buyer shall take all actions to ensure that any issuance of shares under this Section 2.3(c) shall be exempt under Rule 16b-3 under the Exchange Act. (ii) Within five Business Days following the end of the True-Up Period, Buyer shall provide Seller a true and complete written list of all Remaining Contingent Accounts. After receipt of such list, Seller shall have 10 days to review such list. If Seller disputes any name on the list, the parties will have 15 days to agree upon the final list. If at the end of such 15 day period, Buyer and Seller are not able to agree upon the Remaining Contingent Accounts the parties shall refer the matter to arbitration as set forth in Section 8.13 hereof. Until the Remaining Contingent Accounts have been agreed upon or been determined by the arbitrator (the “Contingent Account Resolution”) no payments shall be made under this Section 2.3(c). (iii) During any review or any dispute as provided in this Section 2.3(c), Buyer shall, and shall cause its Affiliates and the Employees to: (x) provide Seller and its Representatives with access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees, including the Employees and (y) cooperate fully with Seller and its Representatives as reasonably requested by Seller with respect to determining the Remaining Contingent Accounts.

Contingent Account True-Up. (i) If any Contingent Account exists at the Closing Measurement Date and either (xi) if such Contingent Account is required by applicable Law or the terms of the Investment Advisory Arrangement applicable thereto to provide consent to the transactions contemplated hereby to enter into a New Advisory Contract or to obtain investor approval of a New Advisory Contract in order for such New Advisory Contract to remain in effect beyond the True-Up Period or become effective in order for the Transferred Entities to continue providing investment advisory services to such account after the Closing, and such Contingent Account has on the date that is 150 days following the Closing (the 150 day period, the “True-Up Period”), not previously granted such consent (including by way of negative consents), not entered into a New Advisory Contract or not obtained such investor approval, as the case may be, or (yii) if such Contingent Account (other than any Contingent Account covered in clause (xi) above) has terminated the applicable Existing Advisory Contract prior to the end of the True-Up Period or has provided to Buyer or one of its Affiliates (including the Transferred Entities) effective notice of termination of the applicable Existing Advisory Contract (such accounts described in clauses (x) and (y) being “Remaining Contingent Accounts”)Contract, then Seller shall promptly following the Contingent Account Resolution end of the True-Up Period (I) Seller shall, at its sole election, either (Ax) return to Buyer such number of shares of, at Seller’s election, the Buyer Series B Preferred Stock or the Buyer Series D Preferred Stock equal to the quotient obtained by dividing (i) the amount by which the Revenue Run Run-Rate Adjustment Amount would have become positive or increased, if any, if any such remaining Contingent Accounts were treated as Contingent Accounts for purposes of calculating Adjusted Assets Under Management and the Revenue Run Run-Rate Adjustment Amount in respect of the Closing by (ii) the Reference Price or (By) pay to Buyer an amount in cash equal to the amount calculated by clause (A)(i); or (II) Buyer shall issue to Seller or its designee such number of shares of the Buyer Series B Preferred Stock equal to the quotient obtained by dividing (A) the amount, if any, by which the Revenue Run Rate Adjustment Amount as determined for purposes of the Closing exceeds the Revenue Run Rate Adjustment Amount as determined following the Contingent Account Resolution by (B) the Reference Price; provided that any fractional share amount shall be paid in cash on the basis of an amount determined by reference to the Reference Price; provided further, that if such issuance were made at the Closing and would have resulted in Deficit Shares then the provisions of Section 2.2(b) shall apply to such shares; and provided further, that if the Contingent Account Resolution occurs after the termination of the Resolution Period or, if later, the date of determination of the Unresolved Items pursuant to Section 2.3(a)(iv) above, interest shall be added to the amount of any payment required by this Section 2.3(a) at the annual rate, calculated daily on the basis of a 360 day year, of 5%. Buyer shall take all actions to ensure that any issuance of shares under this Section 2.3(c) shall be exempt under Rule 16b-3 under the Exchange Act. (ii) Within five Business Days following the end of the True-Up Period, Buyer shall provide Seller a true and complete written list of all Remaining Contingent Accounts. After receipt of such list, Seller shall have 10 days to review such list. If Seller disputes any name on the list, the parties will have 15 days to agree upon the final list. If at the end of such 15 day period, Buyer and Seller are not able to agree upon the Remaining Contingent Accounts the parties shall refer the matter to arbitration as set forth in Section 8.13 hereof. Until the Remaining Contingent Accounts have been agreed upon or been determined by the arbitrator (the “Contingent Account Resolution”) no payments shall be made under this Section 2.3(cx)(i). (iii) During any review or any dispute as provided in this Section 2.3(c), Buyer shall, and shall cause its Affiliates and the Employees to: (x) provide Seller and its Representatives with access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees, including the Employees and (y) cooperate fully with Seller and its Representatives as reasonably requested by Seller with respect to determining the Remaining Contingent Accounts.