Common use of Payment of Additional Consideration Clause in Contracts

Payment of Additional Consideration. (i) Each Earnout Payment shall be paid in cash, provided that Buyer shall have the right to pay up to seventy-five percent (75%) of each Earnout Payment in the form of shares of FAC Stock. The number of shares of FAC Stock to be issued to Sellers will be determined by dividing (x) the total amount of the applicable Earnout Payment that Buyer elects to pay in the form of FAC Stock by (y) the average daily closing price of FAC Stock for the ten (10) Business Days prior to the expiration of the applicable Earnout Period (subject to adjustment to reflect any adjustments to the FAC Stock made to reflect any merger, reorganization, consolidation, recapitalization, spinoff, stock dividend, stock split, extraordinary distribution with respect to the FAC Stock or other change in corporate structure affecting the FAC Stock, as Buyer's Board of Directors reasonably shall deem fair and appropriate). No fractional shares of FAC Stock shall be issued. Notwithstanding the foregoing, the amount of any Earnout Payment that Buyer elects to pay in the form of FAC Stock shall not exceed $3,000,000 for any Earnout Period and in no event shall such amounts exceed $6,000,000 in the aggregate for all Earnout Payments. (ii) On the fifth Business Day after the earlier of (A) the receipt by the Delivering Party of the Receiving Party's Earnout Approval Notice, (B) the expiration of the Earnout Dispute Period if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice within such period, (C) the resolution by the parties of all differences regarding the calculations of Pre-Tax Net Income for the relevant Earnout Period within the Earnout Resolution Period and (D) the receipt of the Earnout Independent Accountant Determination, at such time and place as the parties mutually agree, Buyer shall pay or deliver (as applicable) to Sellers the Final Earnout Payment (as defined below) for such Earnout Period (the "Earnout Payment Date"). For purposes of this Section 1.5(c), a "Final Earnout Payment" shall mean an Earnout Payment as (A) accepted by the Receiving Party through the Receiving Party's Earnout Approval Notice, (B) set forth in the Pre-Tax Net Income Schedule delivered by the Delivering Party to the Receiving Party if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice prior to expiration of the Earnout Dispute Period, (C) fully agreed by the Delivering Party and the Receiving Party prior to expiration of the Earnout Resolution Period, or (D) set forth in the Earnout Independent Accountant Determination. (iii) With respect to the cash portion of such Final Earnout Payment, Buyer shall pay such cash by wire transfer of immediately available funds to Sellers' Accounts, pro rata. To the extent Buyer elects to pay a portion of such Final Earnout Payment in FAC Stock pursuant to paragraph (i) above, Buyer shall deliver to each Seller certificates representing the number of whole shares of FAC Stock that such Seller is entitled to receive; provided, that such Seller executes and delivers to Buyer an investment representation letter, substantially in the form of Annex D hereto.

Payment of Additional Consideration. (a) Upon each satisfaction of the conditions in Section 1, Buyers shall, or cause the Asset Company to, promptly pay to Sellers as additional Purchase Price under the Purchase Agreement, an amount equal to: (i) Each Earnout Payment 20% of any Value Enhancement Gain incurred or deemed incurred during the first year of the Contingent Event Period by the Transferor and (ii) 10% of any Value Enhancement Gain incurred or deemed incurred during the second year of the Contingent Event Period by the Transferor (the “Additional Consideration”). (b) If 90% or more of the consideration paid to Transferor in the MLP Transfer is cash, the Additional Consideration shall be paid in cash, provided that Buyer shall have the right to pay up to seventy-five percent (75%) of each Earnout Payment in the form of shares of FAC Stock. The number of shares of FAC Stock to be issued to Sellers will be determined by dividing (x) the total amount of the applicable Earnout Payment that Buyer elects to pay in the form of FAC Stock by (y) the average daily closing price of FAC Stock for the ten (10) Business Days prior to the expiration of the applicable Earnout Period (subject to adjustment to reflect any adjustments to the FAC Stock made to reflect any merger, reorganization, consolidation, recapitalization, spinoff, stock dividend, stock split, extraordinary distribution with respect to the FAC Stock or other change in corporate structure affecting the FAC Stock, as Buyer's Board of Directors reasonably shall deem fair and appropriate). No fractional shares of FAC Stock shall be issued. Notwithstanding the foregoing, the amount of any Earnout Payment that Buyer elects to pay in the form of FAC Stock shall not exceed $3,000,000 for any Earnout Period and in no event shall such amounts exceed $6,000,000 in the aggregate for all Earnout Payments. (ii) On the fifth Business Day after the earlier of (A) the receipt by the Delivering Party of the Receiving Party's Earnout Approval Notice, (B) the expiration of the Earnout Dispute Period if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice within such period, (C) the resolution by the parties of all differences regarding the calculations of Pre-Tax Net Income for the relevant Earnout Period within the Earnout Resolution Period and (D) the receipt of the Earnout Independent Accountant Determination, at such time and place as the parties mutually agree, Buyer shall pay or deliver (as applicable) to Sellers the Final Earnout Payment (as defined below) for such Earnout Period (the "Earnout Payment Date"). For purposes of this Section 1.5(c), a "Final Earnout Payment" shall mean an Earnout Payment as (A) accepted by the Receiving Party through the Receiving Party's Earnout Approval Notice, (B) set forth in the Pre-Tax Net Income Schedule delivered by the Delivering Party to the Receiving Party if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice prior to expiration of the Earnout Dispute Period, (C) fully agreed by the Delivering Party and the Receiving Party prior to expiration of the Earnout Resolution Period, or (D) set forth in the Earnout Independent Accountant Determination. (iii) With respect to the cash portion of such Final Earnout Payment, Buyer shall pay such cash by wire transfer of immediately available funds to an account specified by Sellers' Accounts. Subject to paragraph 2(c), pro rata. To if less than 90% of the extent Buyer elects to pay consideration received by Transferor in the MLP Transfer is cash, a portion of the Additional Consideration shall be paid to Sellers in cash by wire transfer of immediately available funds in an amount equal to the Additional Consideration multiplied by a fraction, the numerator of which is the amount of cash and the fair market value of any other consideration which is not securities received by Transferor as consideration (for all assets transferred, including those that do not constitute Covered Assets) in the MLP Transfer (including any increase in value of any existing equity interests of Transferor owned in the Covered MLP resulting from the MLP Transfer), and the denominator of which the value of all consideration received by Transferor in the MLP Transfer (including any increase in value of any existing equity interests of Transferor owned in the Covered MLP resulting from the MLP Transfer). The balance of the Additional Consideration will be paid, at Transferor’s election, in cash or by transfer of securities received by the Transferor in the MLP Transfer having a fair market value equal to the amount of Additional Consideration not paid in cash; provided that if such Final Earnout Payment securities are issued in FAC Stock pursuant a Covered MLP and are of a class, or convertible or exchangeable into a class, that is, or are reasonably expected to paragraph be, listed on a national securities, or traded on the NASDAQ National Market (or similar replacement thereof) and the issuing Covered MLP, (i) aboveSellers and their assigns shall be granted or assigned registration rights with respect to such securities (or the underlying class of securities if convertible or exchangeable into such a publicly traded class) for the registration under the Securities Act of 1933, Buyer as amended, of the resale of such securities by Sellers or their assigns; (ii) such registration rights shall deliver not be materially less favorable than registration rights received by Transferor in connection with such MLP Transfer; (iii) unless registration rights granted to each Seller certificates representing Transferor provide for earlier registration, the number registration of whole shares Sellers’ securities shall not be required prior to such time as the Covered MLP is eligible for short-form registration on Form S-3 or similar form; and (iv) such registration rights shall terminate if such securities are available to be resold by Sellers or their assigns pursuant to an exemption from such registration under Securities and Exchange Commission Rule 144(k) or similar rule. (c) Notwithstanding the provisions of FAC Stock that such Seller paragraph 2(b), if the entire Additional Consideration is entitled not paid Buyers or the Asset Company in cash, Buyers or the Asset Company will pay an amount of the Additional Consideration in cash at least equal to receive; provided, that such Seller executes the lesser of the following: (i) the federal income tax payable by Sellers with respect to receipt of the non-cash portion of the Additional Consideration calculated at the highest marginal federal income tax rate applicable to Sellers at the time of payment and delivers to Buyer an investment representation letter, substantially in the form of Annex D hereto(ii) $5 million.

Payment of Additional Consideration. (i) Each Earnout Payment The Acquiror shall be paid in cash, provided that Buyer shall have deposit with the right to pay up to seventy-five percent (75%) of each Earnout Payment Exchange Agent cash or immediately available funds in the form of shares of FAC Stock. The number of shares of FAC Stock to be issued to Sellers will be determined by dividing (x) the total amount of the applicable Earnout Additional Consideration payable hereunder (less the amount of the Interim CEO Payment that Buyer elects payable pursuant to pay Section 2.8 and less any amounts in the form of FAC Stock by (ydispute in accordance with Section 2.3(e)) the average daily closing price of FAC Stock for the within ten (10) Business Days following approval by the Board of Directors of the Acquiror (the “Acquiror Board”), at its regularly scheduled meeting held in February 2011, of the PV Commercial Revenue, the Commercial Gross Margin and the resulting Additional Consideration payable as set forth in the Earn-Out Statement, or promptly following the determination of such amounts by an Arbiter in the event of a dispute as contemplated by Section 2.3(e); provided that if the PV Commercial Revenue and Commercial Gross Margin targets set forth in Section 2.3(a) have been achieved prior to the expiration regularly scheduled meeting of the applicable Earnout Period Acquiror Board held prior to the end of the fiscal year ending December 31, 2010, then such payment to the Exchange Agent shall be made promptly following approval of the Acquiror Board at such meeting. The Exchange Agent shall promptly disburse to each Shareholder his, her or its Pro Rata Share of the Additional Consideration (other than any amounts that are subject to adjustment to reflect any adjustments dispute). The Acquiror shall furnish to the FAC Stock made Shareholder Representative at least five (5) days advance written notice of the Acquiror Board meeting, together with all materials provided to reflect the Acquiror Board relating to the calculation and approval of the Additional Consideration as well as any mergerrecommendations contained therein. The standard for the Acquiror Board approval of the Additional Consideration is whether the calculations of PV Commercial Revenue and Commercial Gross Margin set forth in the Earn-Out Statement were determined in accordance with the terms of this Agreement. If the Acquiror Board approves any modification to the calculation of the Additional Consideration set forth in the Earn-Out Statement, reorganizationthe Acquiror shall notify the Shareholder Representative of such modification, consolidationspecifying the basis therefor and the computation of Additional Consideration so approved by the Acquiror Board. Any late payment of the Additional Consideration shall bear interest at the then senior bank rate available to the Acquiror plus 200 basis points. Notwithstanding anything to the contrary herein, recapitalization, spinoff, stock dividend, stock split, extraordinary distribution if there is a dispute with respect to the FAC Stock amount of Additional Consideration payable hereunder, the Acquiror shall promptly deposit with the Exchange Agent any undisputed portion of the Additional Consideration as otherwise required by this Section 2.3(f); provided that if the Acquiror has a reasonable basis for claiming fraud or other change intentional material misrepresentation in corporate structure affecting the FAC Stockconduct of the business of the Surviving Company during the Earn-Out Period, as Buyer's Board of Directors reasonably the Acquiror shall deem fair provide the Shareholder Representative with notice thereof, specifying in reasonable details the basis for such claim, and appropriate). No fractional shares of FAC Stock shall be issued. Notwithstanding entitled to withhold the foregoing, the entire amount of any Earnout Payment that Buyer elects to pay in Additional Consideration pending determination of the form of FAC Stock shall not exceed $3,000,000 for any Earnout Period and in no event shall such amounts exceed $6,000,000 in the aggregate for all Earnout Payments. (ii) On the fifth Business Day after the earlier of (A) the receipt recoverable by the Delivering Party of the Receiving Party's Earnout Approval Notice, (B) the expiration of the Earnout Dispute Period if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice within such period, (C) the resolution by the parties of all differences regarding the calculations of Pre-Tax Net Income for the relevant Earnout Period within the Earnout Resolution Period and (D) the receipt of the Earnout Independent Accountant Determination, at such time and place as the parties mutually agree, Buyer shall pay or deliver (as applicable) to Sellers the Final Earnout Payment (as defined below) for such Earnout Period (the "Earnout Payment Date"). For purposes of this Section 1.5(c), a "Final Earnout Payment" shall mean an Earnout Payment as (A) accepted by the Receiving Party through the Receiving Party's Earnout Approval Notice, (B) set forth in the Pre-Tax Net Income Schedule delivered by the Delivering Party to the Receiving Party if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice prior to expiration of the Earnout Dispute Period, (C) fully agreed by the Delivering Party and the Receiving Party prior to expiration of the Earnout Resolution Period, or (D) set forth in the Earnout Independent Accountant Determination. (iii) With respect to the cash portion of such Final Earnout Payment, Buyer shall pay such cash by wire transfer of immediately available funds to Sellers' Accounts, pro rata. To the extent Buyer elects to pay a portion of such Final Earnout Payment in FAC Stock Acquiror pursuant to paragraph (i) above, Buyer shall deliver to each Seller certificates representing the number of whole shares of FAC Stock that such Seller is entitled to receive; provided, that such Seller executes and delivers to Buyer an investment representation letter, substantially in the form of Annex D heretoArticle IX.

Payment of Additional Consideration. As additional consideration for the purchase of the Shares, Purchaser shall pay to the Shareholders, in accordance with their pro rata ownership of the Shares, as set forth on Schedule 3.2 hereof (i) Each Earnout Payment shall be paid in cash, provided that Buyer shall have as amended as of the right Closing Date to pay up to seventy-five percent (75%) of each Earnout Payment in reflect the form repurchase of shares of FAC Stock. The number Seller Common Stock held by Ponte and the exercise of shares of FAC Stock options to be issued to Sellers will be determined by dividing (x) the total amount of the applicable Earnout Payment that Buyer elects to pay in the form of FAC acquire Seller Common Stock by (y) the average daily closing price of FAC Stock for the ten (10) Business Days prior to the expiration of the applicable Earnout Period (subject to adjustment to reflect any adjustments to the FAC Stock made to reflect any mergerTeel), reorganizationxhe Additional Consideration, consolidationif earned, recapitalization, spinoff, stock dividend, stock split, extraordinary distribution with respect to the FAC Stock or other change in corporate structure affecting Earn-Out Period. As soon as is reasonably practicable after the FAC StockEarn-Out Period, as Buyer's Board of Directors reasonably Purchaser shall deem fair and appropriate). No fractional shares of FAC Stock shall be issued. Notwithstanding the foregoing, calculate the amount of any Earnout Payment that Buyer elects the Additional Consideration, if any, and shall deliver to the Shareholders' Representative a written calculation of how the Additional Consideration for the Earn-Out Period, if any, was determined. Purchaser shall use its reasonable best efforts to complete such calculation on or about February 15, 1999. The Shareholders' Representative shall have thirty (30) days after delivery to verify such calculation, and Purchaser shall cooperate with the Shareholders' Representative to the extent reasonably practicable to support and document such calculation. In the event the Shareholders' Representative does not object to such calculation within such 30-day period, then such calculation shall become final and binding on the parties hereto, and Purchaser shall pay to the Shareholders, in the form of FAC Stock shall not exceed $3,000,000 for any Earnout Period and in no event shall such amounts exceed $6,000,000 in the aggregate for all Earnout Payments. cash, within fifteen (ii15) On the fifth Business Day business days after the earlier end of (A) such 30-day period, the receipt Additional Consideration, if any. If the Shareholders' Representative objects to any such calculation, Purchaser shall pay to the Shareholders such amount of Additional Consideration as is not in dispute. Purchaser and the Shareholders' Representative will attempt to resolve such dispute, but if they are unable to do so, the parties will submit the unresolved aspects to Purchaser's Accountants to resolve the dispute and make a determination. The fees and expenses of such accounting firm shall be shared one-half by the Delivering Party Shareholders together and one-half by Purchaser. If the Shareholders' Representative disagrees with the determination of Purchaser's Accountants, the Receiving Party's Earnout Approval Notice, (B) the expiration of the Earnout Dispute Period if the Delivering Party has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice within such period, (C) the resolution by the parties of all differences regarding the calculations of Pre-Tax Net Income for the relevant Earnout Period within the Earnout Resolution Period and (D) the receipt of the Earnout Independent Accountant DeterminationShareholders' Representative may hire, at the Shareholders' expense, another "Big Six" accounting firm to review the determination of Purchaser's Accountants. Purchaser and the Shareholders' Representative shall request that Purchaser's Accountants and such time and place as accounting firm attempt to agree upon the parties mutually proper calculation; if they agree, Buyer shall pay or deliver (as applicable) their determination will be binding; if they do not agree, the dispute will be submitted to Sellers arbitration in accordance with the Final Earnout Payment (as defined below) for such Earnout Period (the "Earnout Payment Date"). For purposes of this Section 1.5(c), a "Final Earnout Payment" shall mean an Earnout Payment as (A) accepted by the Receiving Party through the Receiving Party's Earnout Approval Notice, (B) procedures set forth in Section 9.7. To reflect the Pre-Tax Net Income Schedule delivered time value of money, beginning April 1, 1999, the Additional Consideration shall bear interest at the PNI Rate, or if such rate is not then being announced, a comparable rate selected by Purchaser and consented to by the Delivering Party to the Receiving Party if the Delivering Party has Shareholders' Representative which consent shall not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice prior to expiration of the Earnout Dispute Period, (C) fully agreed by the Delivering Party and the Receiving Party prior to expiration of the Earnout Resolution Period, or (D) set forth in the Earnout Independent Accountant Determinationbe unreasonably withheld. (iii) With respect to the cash portion of such Final Earnout Payment, Buyer shall pay such cash by wire transfer of immediately available funds to Sellers' Accounts, pro rata. To the extent Buyer elects to pay a portion of such Final Earnout Payment in FAC Stock pursuant to paragraph (i) above, Buyer shall deliver to each Seller certificates representing the number of whole shares of FAC Stock that such Seller is entitled to receive; provided, that such Seller executes and delivers to Buyer an investment representation letter, substantially in the form of Annex D hereto.

Payment of Additional Consideration. (i) Each Earnout Payment Any payments owed by the Purchaser pursuant to this Section 2.5 for a particular Measuring Period shall be paid in cash, provided that Buyer shall have the right to pay up to seventy-five percent (75%) of each Earnout Payment in the form of shares of FAC Stock. The number of shares of FAC Stock to be issued to Sellers will be determined by dividing (x) the total amount of the applicable Earnout Payment that Buyer elects to pay in the form of FAC Stock by (y) the average daily closing price of FAC Stock for the made no later than ten (10) Business Days prior to the expiration of the applicable Earnout Period (subject to adjustment to reflect any adjustments to the FAC Stock made to reflect any merger, reorganization, consolidation, recapitalization, spinoff, stock dividend, stock split, extraordinary distribution with respect to the FAC Stock or other change in corporate structure affecting the FAC Stock, as Buyer's Board of Directors reasonably shall deem fair and appropriate). No fractional shares of FAC Stock shall be issued. Notwithstanding the foregoing, the amount of any Earnout Payment that Buyer elects to pay in the form of FAC Stock shall not exceed $3,000,000 for any Earnout Period and in no event shall such amounts exceed $6,000,000 in the aggregate for all Earnout Payments. (ii) On the fifth Business Day after the earlier earliest of (A) the receipt by the Delivering Party of the Receiving Party's Earnout Approval Notice, (Bi) the expiration of the Earnout Dispute Period if the Delivering Party Purchaser has not received the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout a Dispute Notice concerning the Earn-Out Report within such that period, (Cii) the resolution by the parties Purchaser and the Sellers of all differences regarding the calculations of PreEarn-Tax Net Income for the relevant Earnout Period within the Earnout Resolution Period and Out Report, (Diii) the receipt of the Earnout Independent Accountant Determination, at such time and place Arbitrating Accountant’s determination as the parties mutually agree, Buyer shall pay or deliver (as applicable) to Sellers the Final Earnout Payment (as defined below) for such Earnout Period (the "Earnout Payment Date"). For purposes of this Section 1.5(c), a "Final Earnout Payment" shall mean an Earnout Payment as (A) accepted by the Receiving Party through the Receiving Party's Earnout Approval Notice, (B) set forth in Section 2.5(d); provided, however, that (1) with respect to payments for Measuring Periods following the Pre-Tax Net Income Schedule delivered by achievement of an Additional Consideration Target in a prior Measuring Period, the Delivering Party payment for such following Measuring Period shall be made with ten (10) Business Days after the end of such Measuring Period, and (2) with respect to Final Adjustment Payments, such payments shall be made together with the Receiving Party if payment for the Delivering Party has Third Year Period. The Purchaser shall not received the Receiving Party's Earnout Approval Notice be obligated to issue fractional shares of Common Stock to any Seller or the Receiving Party's Earnout Dispute Notice prior to expiration Designated Employee under this Section 2.5(f) and any Seller or Designated Employee who would otherwise receive a fractional share based on their pro rata percentage of the Earnout Dispute Period, (C) fully agreed by Purchase Price shall instead the Delivering Party and the Receiving Party prior next whole number of Shares to expiration of the Earnout Resolution Period, or (D) set forth in the Earnout Independent Accountant Determinationwhich they would otherwise be entitled under this Section 2.5(f). (iiii) With respect The Purchaser shall issue any Additional Consideration consisting of shares of Common Stock, by issuance of the appropriate number of shares of Common Stock to each Seller; in accordance with each Seller’s Pro Rata Share as set forth on Exhibit A. (ii) Notwithstanding anything to the cash portion contrary in the foregoing, prior to the payment of any Additional Consideration to the Sellers pursuant to this Section 2.5, (x) shall be reduced by the applicable Designated Employee Percentage, (y) the Purchaser shall issue, or shall contribute to and cause the New Business Segment to pay, as applicable, such Designated Employee Percentage of such Final Earnout Paymentamount of the Additional Consideration to the Designated Employees in accordance with their applicable Designated Employee Pro Rata Share, Buyer shall pay such cash by wire transfer of immediately available funds to Sellers' Accounts, pro rata. To and (z) the extent Buyer elects to pay a portion applicable Designated Employee Percentage of such Final Earnout Payment in FAC Stock pursuant to paragraph (i) above, Buyer Additional Consideration amounts shall deliver to each Seller certificates representing the number of whole shares of FAC Stock that such Seller is entitled to receivenot be treated as Purchase Price; provided, however, that such Seller executes any Ineligible Employee Shares will be apportioned among and delivers issued to Buyer an investment representation letter, substantially the Sellers in the form of Annex D hereto.accordance with Exhibit A.