Contingent Payments (a) Following the Closing and as additional consideration for the Securities, Buyer shall make, or cause the Acquired Entities to make, to Sellers (subject to the terms and conditions set forth in this Section 1.4) additional cash payments based on the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect to each Contingent Payment Period, Buyer shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount equal to the amount, if any, by which EBITDA during such Contingent Payment Period exceeds $8,000,000 (each such excess, if and to the extent earned for any such Contingent Payment Period, a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows:
(A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012.
(b) Within five (5) Business Days following Buyer’s receipt of its audited consolidated financial statements for a particular Contingent Payment Period, but in any event within 95 days following the last day of each Contingent Payment Period, Buyer’s board of directors (the “Board”) shall deliver to each Seller (i) a copy of such financial statements, if such financial statements have been delivered to Buyer as of such date, (ii) a statement (a “Calculation Notice”) setting forth in reasonable detail Buyer’s calculation of the Contingent Payment (if any) for such Contingent Payment Period and
Contingent Payment (a) In the event that Purchaser consummates a Change of Control Transaction prior to the second anniversary of the Closing Date (a “Qualifying Sale Transaction”), then Seller shall be entitled to receive a payment in an amount equal to twenty percent (20%) of the Net Sale Proceeds, valuing any non-cash consideration included in the Net Sale Proceeds at fair market value (as determined in good faith by the board of directors of Purchaser) (such payment, the “Contingent Payment”), payable in accordance with the provisions of this Section 2.7.
(b) No later than five (5) days following the final determination of the Qualifying Sale Proceeds pursuant to the post-closing purchase price adjustment provisions of the definitive agreement for such Qualifying Sale Transaction (the “Qualifying Sale Agreement”) Purchaser shall deliver to Seller, along with reasonable supporting documentation, a statement setting forth in reasonable detail Purchaser’s good faith calculation of the Net Sale Proceeds and the resulting Contingent Payment (the “Contingent Payment Statement”). Purchaser’s calculation of the Contingent Payment set forth in the Contingent Payment Statement shall be final and binding for all purposes of this Agreement unless Seller delivers to Purchaser a written objection to such calculation within twenty (20) days following the date of delivery of the Contingent Payment Statement setting forth in reasonable detail Seller’s basis for its objection. In the event that Seller timely submits any such written objection, then Purchaser and Seller shall negotiate in good faith to resolve their dispute with respect to the calculation of the Contingent Payment; provided, that if such dispute is not resolved within twenty (20) days after delivery of such written objection, then the dispute resolution provisions of Section 2.4(b) shall apply, mutatis mutandis.
(c) No later than three (3) Business Days after final determination of the amount of the Contingent Payment pursuant to Section 2.7(b), Purchaser shall pay to Seller the Contingent Payment by wire transfer of immediately available funds to the bank account designated by Seller at least one (1) Business Day prior to the end of such three (3) Business Day period; provided, that in the event that any portion of the consideration to be received by Cerberus pursuant to such Qualifying Sale Transaction (i) is subject to any escrow, holdback or other contingency, then the proportionate amount of the Contingent Payment shall be withheld and not paid to Seller unless, until and only to the extent that such portion of Cerberus’s consideration is released to Cerberus from any such escrow or holdback, or such contingency lapses or is satisfied (or any portion of the amounts withheld in respect of such contingency is distributed to the limited partners or other investors of Cerberus), as applicable, and (ii) is non-cash consideration, then the Contingent Payment shall be made in the same proportion of cash and non-cash consideration as the proportion of cash and non-cash consideration comprising the Qualifying Sale Proceeds; provided further that, to the extent receipt of any non-cash consideration would cause Seller or any of its Affiliates to be bound by, or otherwise subject to, any noncompetition, nonsolicitation or other material restrictive covenant (other than a customary confidentiality covenant, and expressly excluding any shareholder restrictions on transfer that apply equally to Cerberus), Seller instead shall be entitled to receive from Purchaser cash with a value equivalent to such non-cash consideration, valuing such non-cash consideration at fair market value (as determined in good faith by the board of directors of Purchaser).
(d) Notwithstanding anything to the contrary in this Section 2.7 or otherwise, but subject to any rights Seller or any of its Affiliates may have under the Ancillary Agreements, (i) Seller shall have no rights with respect to any Change of Control Transaction, Qualifying Sale Transaction or Qualifying Sale Agreement (including, without limitation, no information rights or rights to object or consent to any such transaction or agreement) other than the rights expressly set forth herein to receive the Contingent Payment if and when payable pursuant to the terms of this Section 2.7 and (ii) Purchaser shall not be permitted in connection with any Qualifying Sale Transaction to bind Seller or any of its Affiliates to sell any equity interests to, or to make any agreement, covenant or restriction with or in favor of, any third party.
Compensation Other Than Severance Payments 4.1 If the Executive’s employment shall be terminated for any reason following a Change in Control, the Company shall pay the Executive’s full salary to the Executive through the Date of Termination at the rate in effect immediately prior to the Date of Termination or, if Section 18(n)(ii) is applicable as an event or circumstance constituting Good Reason, the rate in effect immediately prior to such event or circumstance, together with all compensation and benefits payable to the Executive through the Date of Termination under the terms of the Company’s compensation and benefit plans, programs or arrangements as in effect immediately prior to the Date of Termination (or, if more favorable to the Executive, as in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason). In addition, if the Executive’s employment is terminated for any reason following a Change in Control other than (a) by the Company for Cause and (b) by the Executive without Good Reason, then the Company shall pay a pro-rata portion of the Executive’s annual bonus for the performance year in which such termination occurs to the Executive on the later of (x) the date that annual bonuses are generally paid to other senior executives and (y) the date that is the first business day after the date that is six months after the Date of Termination. This pro-rata bonus shall be determined by multiplying the amount the Executive would have received based upon actual financial performance through such termination, as reasonably determined by the Company, by a fraction, the numerator of which is the number of days during such performance year that the Executive is employed by the Company and the denominator of which is 365.
4.2 If the Executive’s employment shall be terminated for any reason following a Change in Control, the Company shall pay to the Executive the Executive’s normal post-termination compensation and benefits as such payments become due. Such post-termination compensation and benefits shall be determined under, and paid in accordance with, the Company’s retirement, insurance and other compensation or benefit plans, programs and arrangements as in effect immediately prior to the Date of Termination or, if more favorable to the Executive, as in effect immediately prior to the occurrence of the first event or circumstance constituting Good Reason.
Payments to Specified Employees Notwithstanding any other Section of this Agreement, if the Employee is a Specified Employee at the time of the Employee’s Separation from Service, payments or distribution of property to the Employee provided under this Agreement, to the extent considered amounts deferred under a non-qualified deferred compensation plan (as defined in Code Section 409A) shall be deferred until the six (6) month anniversary of such Separation from Service to the extent required in order to comply with Code Section 409A and Treasury Regulation 1.409A-3(i)(2).
Contingent Compensation Xxxxxx Xxxxxx Xxxxxx may accept certain forms of contingent compensation in locations where they are legally permissible, and meet standards and controls to address conflicts of interest. Because insurers account for contingent payments when developing general pricing, the price our clients pay for their policies is not affected whether Xxxxxx Xxxxxx Xxxxxx accepts contingent payments or not. If a Xxxxxx Xxxxxx Xxxxxx client prefers that we not accept contingent compensation related to their account, we will request that the client’s insurer(s) exclude that client’s business from their contingent payment calculations. The Foreign Account Tax Compliance Act (FATCA) is a U.S. law aimed at foreign financial institutions and other financial intermediaries (including insurance companies and intermediaries such as brokers) to prevent tax evasion by U.S. citizens and residents through offshore accounts. In order to comply with FATCA, insurance companies and intermediaries must meet certain legal requirements. Insurance placed with an insurance company that is not FATCA compliant may result in a 30% withholding tax on your premium. Where FATCA is applicable to you, in order to avoid this withholding tax, Xxxxxx Xxxxxx Xxxxxx will only place your insurance with FATCA- compliant insurers and intermediaries for which no withholding is required unless you instruct us to do otherwise and provide your advance written authorization to do so. If you do instruct Xxxxxx Xxxxxx Xxxxxx to place your insurance with a non-FATCA compliant insurer or intermediary, you may have to pay an additional amount equivalent to 30% of the premium covering U.S. - sourced risks to cover the withholding tax. If you instruct us to place your insurance with a non-FATCA compliant insurer but you do not agree to pay the additional 30% withholding if required, we will not place your insurance with such insurer. Please consult your tax adviser for full details of FATCA.
Severance Payment If, during the Employment Term at any time during the period of twelve (12) consecutive months following the occurrence of a Change in Corporate Control, the Executive is involuntarily terminated (other than for Cause) or the Executive terminates his employment for Good Reason, then subject to compliance with the restrictive covenants in Section 9 and Section 10 and the execution and timely return by the Executive of the Release, the Executive shall be entitled to receive a lump sum severance payment equal to the present value of a series of monthly payments for twenty-four (24) months, each in an amount equal to one-twelfth (1/12th) of the sum of (i) the Executive’s Base Salary, as in effect at the time of the Change in Corporate Control, and (ii) the average of the annual bonuses paid to the Executive for the prior two fiscal years of the Company ending prior to the Change in Corporate Control, if any. Such present value shall be calculated using a discount rate equal to the interest rate on 90-day Treasury bills, as reported in the Wall Street Journal (or similar publication) on the date of the Change in Corporate Control. Such lump sum payment shall be made to the Executive within sixty (60) days following the date of such involuntary termination. In addition, if during the Employment Term within twelve (12) months after a Change in Corporate Control the Executive is involuntarily terminated (other than for Cause) or the Executive terminates his employment for Good Reason, he shall be entitled to continued coverage at the Company’s expense under any health insurance programs maintained by the Company in which the Executive participated at the time of his termination, which coverage shall be continued for eighteen (18) months or until, if earlier, the date the Executive obtains comparable coverage under a group health plan maintained by a new employer. To the extent the benefits provided under the immediately preceding sentence are otherwise taxable to the Executive, such benefits, for purposes of Section 409A of the Code (and the regulations and other guidance issued thereunder) shall be provided as separate monthly in-kind payments of those benefits, and to the extent those benefits are subject to and not otherwise excepted from Section 409A of the Code, the provision of the in-kind benefits during one calendar year shall not affect the in-kind benefits to be provided in any other calendar year.
Payment of Compensation Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 30 days of receiving such statement, review the statement and pay all approved charges thereon.
Lump Sum Severance Payment Payment of a lump sum amount equal to twelve (12) months of Executive’s then-current Base Salary plus the Pro Rated Bonus, less all customary and required taxes and employment-related deductions, paid on the first payroll date following the date on which the Release required by Paragraph 4(g) becomes effective and non-revocable, but not after seventy (70) days following the effective date of termination from employment.
Severance Payments 5.1 The Company shall pay the Executive the payments described in this Section 5.1 ("Severance Payments") upon the termination of the Executive's employment following a Change in Control during the term of this Agreement, including the Executive's termination of employment for Good Reason, unless such termination is (a) by the Company for Cause, or (b) by reason of the Executive's Death or Disability. The Executive's employment shall be deemed to have been terminated following a Change in Control by the Company without Cause if the Executive's employment is terminated prior to a Change in Control without Cause at the direction (or action which constitutes a direction) of a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control.
(i) Within three (3) business days after the Date of Termination, the Company shall make a lump sum or monthly, at the Executive's option, cash severance payment to the Executive in an amount equal to: (x) the Executive's annual base salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control; and (y) a pro-rated portion of Executive's Targeted Annual Bonus for the fiscal year in which the Date of Termination occurs.
(ii) For a twelve (12) month period after the Date of Termination, the Company shall arrange to provide the Executive with medical and dental insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination. Benefits otherwise receivable by the Executive pursuant to this Section 5.1(ii) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive).
5.2 The Company also shall pay to the Executive all legal fees and expenses incurred by the Executive in disputing the non-payment of Severance Payments in connection with a termination which entitles the Executive to Severance Payments. Such payments shall be made within five (5) business days after delivery of the Executive's written request for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
Compensation & Payment 8.4.1. Should the claim be found proven; settlement is executed only in the form of compensation payment added to the Client trade account.
8.4.2. Compensation shall not compensate the profit not received by the Client in the event that the Client had an intention to perform some action but has not performed it for some reason.
8.4.3. The Company shall not compensate non-pecuniary damage to the Client.
8.4.4. The Company adds a compensation payment to the Client trading account within one working day since the moment of making a positive decision on the dispute situation.
