Common use of Contingent Payments Clause in Contracts

Contingent Payments. (a) As further consideration of the agreements set forth herein and the sale by Sellers of the Shares, if the targets set forth below are all achieved, Purchaser shall pay to each Seller such Seller's Pro Rata Share of the applicable amounts set forth below: (the "CONTINGENT PAYMENT"): (i) In the event that the Revenue of the Company for the twelve months ended December 31, 1998 (the "1998 REVENUE") is greater than the 1998 Target Revenue, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $933,333 and will pay to each Seller such Seller's Pro Rata Share of $0.172 for each dollar by which the 1998 Revenue exceeds the 1998 Target Revenue, which additional amount will in no event exceed $400,000; and (ii) In the event that the EBITDA of the Company for the twelve months ended December 31, 1998 (the "1998 EBITDA") is greater than the 1998 Target EBITDA, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $933,333 and will pay $0.513 for each dollar by which the 1998 EBITDA exceeds the 1998 Target EBITDA, which additional amount will in no event exceed $400,000; and (iii) In the event that the Employee Retention Percentage as of December 31, 1998 exceeds the percentage as agreed between Purchaser and Sellers, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $1,133,333. (b) Within ten (10) calendar days following the date on which Purchaser receives the Company's audited financial statements for the twelve months ended December 31, 1998, Purchaser shall prepare and deliver to the Seller Representative a calculation of the 1998 Revenue and 1998 EBITDA and the Employee Retention Percentage as of December 31, 1998. (c) The Seller Representative may dispute Purchaser's calculation of the 1998 Revenue and the 1998 EBITDA, but only on the basis that the amounts reflected in such calculation were not determined in accordance with GAAP or adjusted in accordance with this Agreement. The Seller Representative shall notify Purchaser in writing of each disputed item, specifying the amount of each item in dispute and setting forth, in detail, the basis for each item in dispute, within thirty (30) calendar days of the Seller Representative's receipt of Purchaser's calculation of the Revenue. If the Seller Representative has not notified Purchaser of any such dispute within such thirty (30) day period or has notified Purchaser that the Sellers accept the calculation, of the 1998 Revenue, and the 1998 EBITDA, then Purchaser's calculation shall be deemed to be final and conclusive on the parties hereto, and any amount payable under SECTION 2.3(a) shall be paid by Purchaser by wire transfer within five (5) Business Days thereafter. (d) In the event of such a dispute, Purchaser and the Seller Representative shall negotiate in good faith to reconcile their differences. If such dispute has not been resolved within twenty (20) Business Days after Purchaser's receipt of notice of such dispute, the Seller Representative and Purchaser shall submit the item(s) remaining in dispute to a mutually acceptable independent "Big Five" accounting firm (the "INDEPENDENT ACCOUNTING FIRM"), which shall, as promptly as practical but in no event later than thirty (30) calendar days after such submission, determine and report upon such remaining disputed item(s). Such determination and report shall be final, binding and conclusive on the parties hereto and any amount payable under SECTION 2.3(c) shall be paid by Purchaser by wire transfer within five (5) Business Days thereafter. The fees and disbursements of the Independent Accounting Firm shall be allocated between Purchaser and Sellers in the same proportion that the aggregate amount of such remaining disputed item(s) so submitted to the Independent Accounting Firm, which is unsuccessfully disputed by each such party (as determined by the Independent Accounting Firm), bears to the total amount of such remaining disputed item(s) so submitted. (e) In order not to interfere with the ability of the Company to meet the Revenue and EBITDA targets set forth in SECTION 2.3(a), prior to January 1, 1999, Purchaser shall not transfer any of the employees, assets, or customers of the Acquired Companies to Purchaser or any Affiliate of Purchaser unless Purchaser first makes arrangements for the Acquired Companies to receive an allocation of Revenue and EBITDA attributable to such employees, assets or customers for the period prior to January 1, 1999. (f) Notwithstanding the provisions of SECTION 2.3(a), Purchaser shall pay to each of the Sellers such Seller's Pro Rata Share of the full amount of the Contingent Payment in the event that the Company or Purchaser suffers a Change of Control prior to January 1, 1999.

Contingent Payments. (a) As further consideration of the agreements set forth herein and the sale by Sellers of the Shares, if the targets set forth below are all achieved, Purchaser shall pay to each Seller such Seller's Pro Rata Share of the applicable amounts amount set forth below: (the "CONTINGENT PAYMENT"): (i) In the event that (A) the Revenue of the Company for the twelve months ended December 31, 1998 (the "1998 REVENUE") exceeds 80% of the Target Revenue but is greater equal to or less than 100% of the 1998 Target Revenue, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $933,333 and will pay to each Seller such Seller's Pro Rata Share of $0.172 for each dollar by which the 1998 Revenue exceeds the 1998 Target Revenue, which additional amount will in no event exceed $400,000; and (iiB) In the event that the EBITDA of the Company for the twelve months ended December 31, 1998 (the "1998 EBITDA") exceeds 80% of the Target EBITDA but is greater equal to or less than 100% of the 1998 Target EBITDA, and (C) the Employee Retention Percentage as of December 31, 1998 exceeds 80%, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $933,333 and will pay $0.513 for each dollar 4,000,000, or as otherwise directed in writing by which the 1998 EBITDA exceeds Seller Representative at least two (2) Business Days prior to receipt of the 1998 Target EBITDA, which additional amount will in no event exceed $400,000Contingent Payment; andor (iiiii) In the event that (A) the 1998 Revenue is greater than the Target Revenue, (B) the 1998 EBITDA is greater than the Target EBITDA, and (C) the Employee Retention Percentage as of December 31, 1998 exceeds the percentage as agreed between Purchaser and Sellers80%, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $1,133,3335,000,000, or as otherwise directed in writing by the Seller Representative at least two (2) Business Days prior to receipt of the Contingent Payment. (b) Within ten fifteen (1015) calendar days following the date on which Purchaser receives the Company's audited financial statements for the twelve months ended December 31, 19981998 and in no event later than March 31, 1999, Purchaser shall prepare and deliver to the Seller Representative a calculation of the 1998 Revenue and 1998 EBITDA and the Employee Retention Percentage as of December 31, 1998. (c) The Seller Representative may dispute Purchaser's calculation of the 1998 Revenue and the 1998 EBITDA, EBITDA but only on the basis that the amounts reflected in such calculation were not determined in accordance with GAAP or adjusted in accordance with this Agreement. The Seller Representative shall notify Purchaser in writing of each disputed item, specifying the amount of each item in dispute and setting forth, in detail, the basis for each item in dispute, within thirty fifteen (3015) calendar days of the Seller Representative's receipt of Purchaser's calculation of the Revenue. If the Seller Representative has not notified Purchaser of any such dispute within such thirty fifteen (3015) day period or has notified Purchaser that the Sellers accept the calculation, of the 1998 Revenue, and the 1998 EBITDAperiod, then Purchaser's calculation shall be deemed to be final and conclusive on the parties hereto, and any amount payable under SECTION 2.3(a) shall be paid by Purchaser by wire transfer within five (5) Business Days thereafter. (d) In the event of such a dispute, Purchaser and the Seller Representative shall negotiate in good faith to reconcile their differences. If such dispute has not been resolved within twenty ten (2010) Business Days after Purchaser's receipt of notice of such dispute, the Seller Representative and Purchaser shall submit the item(s) remaining in dispute to a mutually acceptable independent "Big Five" accounting firm (the "INDEPENDENT ACCOUNTING FIRM"), which shall, as promptly as practical but in no event later than thirty (30) calendar days after such submission, determine and report upon such remaining disputed item(s). Such determination and report shall be final, binding and conclusive on the parties hereto and any amount payable under SECTION 2.3(c2.3(a) shall be paid by Purchaser by wire transfer within five (5) Business Days thereafter. The fees and disbursements of the Independent Accounting Firm shall be allocated between Purchaser and Sellers in the same proportion that the aggregate amount of such remaining disputed item(s) so submitted to the Independent Accounting Firm, which is unsuccessfully disputed by each such party (as determined by the Independent Accounting Firm), bears to the total amount of such remaining disputed item(s) so submitted. (e) In order not to interfere with the ability of the Company to meet the Revenue Revenue, EBITDA and EBITDA Employee Retention Percentage targets set forth in SECTION Section 2.3(a), prior to January 1, 1999, Purchaser shall not (i) transfer any of the employees, assets, or customers of the Acquired Companies Company to Purchaser or any Affiliate of Purchaser unless Purchaser first makes arrangements for the Acquired Companies Company to receive an allocation of Revenue and EBITDA attributable to such employees, assets or customers for the period prior to January 1, 1999. 1999 or (fii) Notwithstanding materially modify any Company employee's compensation or benefits without the provisions of SECTION 2.3(a), Purchaser shall pay to each prior written consent of the Sellers such Seller's Pro Rata Share of the full amount of the Contingent Payment in the event that the Company or Purchaser suffers a Change of Control prior to January 1, 1999Seller Representative.

Contingent Payments. (a) As further additional consideration for his sale of the agreements set forth herein Interests, and his causing AHC Holdco to sell the sale Units, to Buyer, Seller shall be eligible to receive payment (each, a “Contingent Payment”) of an additional aggregate amount (prior to withholdings required by Sellers Law and to be reported as compensation to Seller) of up to Ten Million Seventy Thousand Dollars ($10,070,000) during the Sharesfive (5) Measurement Periods following the Closing, if the targets set forth below are all achieved, Purchaser shall pay to each Seller such Seller's Pro Rata Share of the applicable amounts set forth below: (the "CONTINGENT PAYMENT"):as follows: (i) In the event that the Revenue EBITDA of the Company for during the twelve months ended December 31First Measurement Period exceeds the First Measurement Period Minimum EBITDA Threshold, 1998 Seller shall be entitled to receive a Contingent Payment in an amount equal to the product of (x) the "1998 REVENUE") is greater than the 1998 Target Revenue, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $933,333 and will pay to each Seller such Seller's Pro Rata Share of $0.172 for each dollar amount by which the 1998 Revenue EBITDA of the Company during the First Measurement Period exceeds the 1998 Target RevenueFirst Measurement Period Minimum EBITDA Threshold multiplied by (y) 3.45; provided, which additional amount will however, in no event shall such Contingent Payment exceed Two Million Five Hundred Ninety Thousand Dollars ($400,0002,590,000); and (ii) In the event that the EBITDA of the Company for during the twelve months ended December 31Second Measurement Period exceeds the Second Measurement Period Minimum EBITDA Threshold, 1998 Seller shall be entitled to receive a Contingent Payment in an amount equal to the product of (x) the "1998 EBITDA") is greater than the 1998 Target EBITDA, Purchaser shall pay to each Seller such Seller's Pro Rata Share of $933,333 and will pay $0.513 for each dollar amount by which the 1998 EBITDA of the Company during the Second Measurement Period exceeds the 1998 Target EBITDASecond Measurement Period Minimum EBITDA Threshold multiplied by (y) 3.54; provided, which additional amount will however, in no event shall such Contingent Payment exceed Two Million Three Hundred Thousand Dollars ($400,0002,300,000); and (iii) In the event that the Employee Retention Percentage as EBITDA of December 31, 1998 the Company during the Third Measurement Period exceeds the percentage as agreed between Purchaser and SellersThird Measurement Period Minimum EBITDA Threshold, Purchaser Seller shall pay be entitled to each Seller receive a Contingent Payment in an amount equal to the product of (x) the amount by which the EBITDA of the Company during the Third Measurement Period exceeds the Third Measurement Period Minimum EBITDA Threshold multiplied by (y) 3.53; provided, however, in no event shall such Seller's Pro Rata Share of Contingent Payment exceed Two Million Ten Thousand Dollars ($1,133,333.2,010,000); and (biv) Within ten (10) calendar days following In the date on which Purchaser receives event the Company's audited financial statements for EBITDA of the twelve months ended December 31Company during the Fourth Measurement Period exceeds the Fourth Measurement Period Minimum EBITDA Threshold, 1998, Purchaser Seller shall prepare and deliver be entitled to receive a Contingent Payment in an amount equal to the Seller Representative a calculation product of (x) the amount by which the EBITDA of the 1998 Revenue and 1998 Company during the Fourth Measurement Period exceeds the Fourth Measurement Period Minimum EBITDA and the Employee Retention Percentage as of December 31Threshold multiplied by (y) 2.79; provided, 1998.however, in no event shall such Contingent Payment exceed One Million Seven Hundred Thirty Thousand Dollars ($1,730,000); and (cv) The Seller Representative may dispute Purchaser's calculation In the event the EBITDA of the 1998 Revenue and Company during the 1998 EBITDAFifth Measurement Period exceeds the Fifth Measurement Period Minimum EBITDA Threshold, but only on Seller shall be entitled to receive a Contingent Payment in an amount equal to the basis that the amounts reflected in such calculation were not determined in accordance with GAAP or adjusted in accordance with this Agreement. The Seller Representative shall notify Purchaser in writing product of each disputed item, specifying (x) the amount by which the EBITDA of each item in dispute and setting forththe Company during the Fifth Measurement Period exceeds the Fifth Measurement Period Minimum EBITDA Threshold multiplied by (y) 2.12; provided, however, in detailno event shall such Contingent Payment exceed One Million Four Hundred Forty Thousand Dollars ($1,440,000). A Contingent Payment, the basis for each item in disputeif due under this Section 1.03, within thirty (30) calendar days of the Seller Representative's receipt of Purchaser's calculation of the Revenue. If the Seller Representative has not notified Purchaser of any such dispute within such thirty (30) day period or has notified Purchaser that the Sellers accept the calculation, of the 1998 Revenue, and the 1998 EBITDA, then Purchaser's calculation shall be deemed to be final and conclusive on the parties hereto, and any amount payable under SECTION 2.3(a) shall be paid by Purchaser by wire transfer Buyer to Seller within five (5) Business Days thereafter. (dof the final determination of the amount of such Contingent Payment under Section 1.03(b), by wire transfer of immediately available funds to such bank account(s) In as shall be designated in writing by Seller. Notwithstanding the foregoing, upon the occurrence of a Forfeiture Event, Buyer’s obligation to make Contingent Payments to Seller shall cease and any Contingent Payment with respect to the Measurement Period during which such Forfeiture Event occurs and any Contingent Payments with respect to subsequent Measurement Periods shall be forfeited; provided, however, that Buyer shall remain obligated to pay Seller any Contingent Payment earned but unpaid with respect to any Measurement Period preceding the Measurement Period during which such Forfeiture Event occurs; and provided, further, that if such Forfeiture Event occurs as a result of Seller’s death or Disability during a Measurement Period, Buyer shall remain obligated to pay to Seller the pro rata portion of any Contingent Payment payable with respect to the portion of such Measurement Period preceding such Forfeiture Event. For example, in the event of such the Seller’s death or Disability on the 181st day of a dispute, Purchaser Measurement Period and it is determined following the Seller Representative shall negotiate in good faith to reconcile their differences. If such dispute has not been resolved within twenty (20) Business Days after Purchaser's receipt of notice end of such disputeMeasurement Period that a Contingent Payment is owing by Buyer hereunder, the Buyer shall remain obligated to pay to Seller Representative and Purchaser shall submit the item(s) remaining in dispute to a mutually acceptable independent "Big Five" accounting firm (the "INDEPENDENT ACCOUNTING FIRM"), which shall, as promptly as practical but in no event later than thirty (30) calendar days after such submission, determine and report upon such remaining disputed item(s). Such determination and report shall be final, binding and conclusive on the parties hereto and any under this Section 1.03 an amount payable under SECTION 2.3(c) shall be paid by Purchaser by wire transfer within five (5) Business Days thereafter. The fees and disbursements of the Independent Accounting Firm shall be allocated between Purchaser and Sellers in the same proportion that the aggregate amount of such remaining disputed item(s) so submitted equal to the Independent Accounting Firm, which is unsuccessfully disputed by each such party product of (as determined by x) the Independent Accounting Firm), bears to the total amount of such remaining disputed item(s) so submitted. (e) In order not to interfere with the ability of the Company to meet the Revenue and EBITDA targets set forth in SECTION 2.3(a), prior to January 1, 1999, Purchaser shall not transfer any of the employees, assets, or customers of the Acquired Companies to Purchaser or any Affiliate of Purchaser unless Purchaser first makes arrangements for the Acquired Companies to receive an allocation of Revenue and EBITDA attributable to such employees, assets or customers for the period prior to January 1, 1999. (f) Notwithstanding the provisions of SECTION 2.3(a), Purchaser shall pay to each of the Sellers such Seller's Pro Rata Share of the full amount of the Contingent Payment Payment, if any, due by Buyer under this Section 1.03 for such Measurement Period as though the Forfeiture Event did not occur, times (y) a fraction, the numerator of which is 180 (being the number of days in such Measurement Period preceding the event that date of Seller’s death or Disability), and the Company denominator of which is either 365 or Purchaser suffers 366, as applicable (being the total number of days in such Measurement Period). For purposes hereof, a Change “Forfeiture Event” means the termination of Control prior to January 1, 1999Seller’s employment with Buyer or its Affiliates for any or no reason other than a termination by Buyer or its Affiliates of Seller’s employment without Cause or a termination by Seller for Good Reason.