Earn-Out Payment On or before each of September 15, 2003 and September 15, 2004, Buyer shall calculate the Revenue (as defined below) for the prior twelve (12) month period ending July 31 (each an "Earn Out Period") attributable to the Business, and deliver a notice of the calculation (together with the details of such calculation, including a line item for each element thereof) to Seller. As used in this Agreement, the "Business" means the products sold (together with services provided in connection therewith) by Company at the time of Closing (without regard to product name changes or the like) and listed on Schedule 1.2(b) (solely for purposes of this Section 1.2, the "Products"), and each subsequent version of any such software product introduced during the Earn Out Periods. The Revenue shall be calculated in accordance with generally accepted accounting principles, applied on a consistent basis and consistent with past Company practices (including practices relating to foreign currency conversion), subject to the adjustments set forth in paragraph (c) below. In the event the Revenue for the one-year period ending on July 31, 2003 is greater than $7,295,851 (the "First Threshold"), One Million Dollars ($1,000,000) (the "First Earn Out Payment") of the Purchase Price will be paid in cash to the Seller on September 15, 2003. In the event the Revenue for the one-year period ending July 31, 2004 is greater than $7,295,851 (the "Second Threshold"), an additional one million dollars ($1,000,000) (the "Second Earn Out Payment") of the Purchase Price will be paid in cash to the Seller on September 15, 2004. Neither the First Earn Out Payment nor the Second Earn Out Payment may be increased, decreased, or prorated. If either the First Earn Out Payment or the Second Earn Out Period is not earned with respect to the year to which it relates, it expires and cannot be paid in a later year regardless of Revenue in that later year. Except for the obligations of Buyer and Company set forth in Section 1.2(e), nothing herein shall in any way limit or restrict Buyer's or Company's business practices or decisions following the Closing, provided that those practices and decisions are not solely for avoiding payment of the Earn Out.
Earn-Out As part of the Purchase Price payable hereunder, Purchaser shall pay to Seller $3,000,000 (the “Earn-Out Payment”) in cash as an earn-out payment to be determined as follows: (a)The Earn-Out Payment shall be based on the outstanding principal balance (including Poolable Advances) of Mortgage Loans that are issued by the Company into GNMA HMBS pools for securitization of Mortgage Loans for the six-month period ending on December 31, 2013, as set forth on the production reports produced by management of the Company for such period. If the Company issues a number of such Mortgage Loans during such six-month period with an aggregate outstanding principal balance (including Poolable Advances) of at least $659,389,000, Purchaser shall pay to Seller $3,000,000 in cash in accordance with Section 3.5(b) below. 18 (b)No later than 30 days after the end of the period on which an Earn-Out Payment is based or the Closing occurs, whichever is later, Purchaser will deliver to Seller a notice (the “Earn-Out Notice”) setting forth Purchaser’s calculation of the outstanding principal balance (including Poolable Advances) of Mortgage Loans that were issued by the Company into GNMA HMBS pools for securitization of Mortgage Loans for the applicable period. If Seller is entitled to the Earn-Out Payment, Purchaser shall make the Earn-Out Payment within 10 Business Days after delivery of the Earn-Out Notice. If Seller is not entitled to the Earn-Out Payment, and Seller disagrees with the Purchaser’s calculation, Seller shall notify Purchaser no later than 15 days after the Earn-Out Notice is delivered of its objections and the basis therefor in reasonable detail. Failure of Seller to notify Purchaser of disagreement with the matters set forth in the Earn-Out Notice within 15 days after delivery of the Earn-Out Notice shall be deemed to be concurrence. If an objection is made, Purchaser and Seller will negotiate in good faith to reach an agreement regarding the matters in dispute. Purchaser shall provide Seller and its Affiliates and their authorized Representatives with reasonable access to the relevant books, records, facilities, employees and representatives of the Company reasonably requested by Seller to evaluate and assess the calculation of the Statements, in each case subject to the terms and conditions set forth in Section 6.2. If Seller and Purchaser are unable to resolve such dispute within 30 days, the disputed item(s) shall be submitted to a neutral and impartial, nationally recognized certified public accounting firm. If the report of such accounting firm concludes that Seller is entitled to the Earn-Out Payment, Purchaser shall make such payment within 10 Business Days of the issuance of the report, plus interest on such amount from the date the Earn-Out Payment would have originally been required to have been made up to but excluding the date on which such payment is made at a rate per annum equal to the Federal Funds Rate as of the Closing Date, calculated on the basis of a year of 360 days and the actual number of days elapsed. Any payment under this Section 3.5(b) shall be made by federal funds wire transfer of immediately available funds to the account(s) of Seller, which account(s) shall be identified by Seller to Purchaser as soon as practicable following the determination of the amount of the Earn-Out Payment. (c)Purchaser shall cause the Company to operate in the pre-Closing Ordinary Course, without accelerating or delaying or otherwise deviating in any material respect from the historical securitization practices prior to the Closing Date, from the Closing Date through December 31, 2013. (d)For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, (i) Purchaser shall have the right to set off the amount of any payments owed to Seller pursuant to this Section 3.5 against any indemnification payment owed to a Purchaser Indemnified Party in accordance with Article X. Section 3.6
Earn-Out Consideration (a) If the earnings before taxes (the "EBT") of the Company for the twelve months ending December 31, 1998, increased by amounts in respect of those items set forth on Schedule 2.5 that affected net income during the period from January 1, 1998 through the Closing Date and decreased by the amount of UniCapital corporate overhead allocated to the Company for the period from the Closing Date through December 31, 1998 (the "Adjusted 1998 EBT"), exceeds the EBT of the Company for the twelve months ending December 31, 1997, inclusive of the add-backs set forth on Schedule 2.5 (the "Adjusted 1997 EBT"), then the Stockholders shall be entitled to receive one-half of the difference between the Adjusted 1998 EBT and the Adjusted 1997 EBT.
Earn-Out Payments (i) Promptly, but in any event within five (5) Business Days, after the Escrow Agent’s receipt of joint written instructions (“Earn-Out Payment Instructions”) from the DT Representative (on behalf of Purchaser) and the Seller Representative that for any Earn-Out Year there has been a final determination in accordance with Section 2.2 of the Share Exchange Agreement (but subject to Sections 2.4 and 2.5 of the Share Exchange Agreement) with respect to the Earn-Out Payment for such Earn-Out Year or the Alternative Earn-Out Payment (the date that the Escrow Agent receives Earn-Out Payment Instructions with respect to any Earn-Out Year, an “Earn-Out Release Date”), the Escrow Agent shall distribute Escrow Property from the Escrow Account in accordance with such Earn-Out Payment Instructions (A) to the Sellers in an amount equal to the Earn-Out Payment (excluding for the avoidance of doubt, the amount of any Accrued Dividends payable by the Purchaser separate from the Escrow Account) less the sum of (I) the Reserved Amount (as defined below) as of the date of such payment, and (II) the amount of any Indemnification Claims that have been paid from the Escrow Account prior to such time but have not previously been used to reduce the amount of any prior Earn-Out Payment (but net of any prior Earn-Out Payments that have not yet been paid and are still being retained in the Escrow Account as of such time for Indemnification Claims that are still Pending Claims as of such time), up to a maximum amount equal to such Earn-Out Payment, and (B), after the last Earn-Out Year only, to Purchaser any portion of any Earn-Out Payments that were not earned by the Sellers in accordance with the Share Exchange Agreement. For the determination of the Escrow Shares to be withheld for the Reserved Amount, the Escrow Shares shall be valued at the Purchaser Share Price as of the applicable Earn-Out Release Date.
Release of Escrow Shares The Escrow Shares shall be ------------------------ released by the Custodian and Cambridge as soon as practicable, taking into account the notices to be delivered under this Section 3.1, after the first anniversary of the date of this Escrow Agreement (the "Release Date"), less: (a) ------------ ---- any Escrow Shares delivered to or deliverable to Cambridge in satisfaction of Uncontested Claims or Contested Claims which have been settled by the parties hereto, and (b) any of the Escrow Shares subject to delivery to Cambridge in accordance with Section 2.3(b) with respect to any then pending Contested Claims. Within ten (10) of the Custodian's business days ("Business Days") ------------- after the Release Date, Cambridge and the Indemnification Representative shall deliver to the Custodian a written notice (a "Release Notice") setting forth the -------------- number of Escrow Shares to be released by the Custodian and Cambridge (the "Released Escrow") including the number of Escrow Shares to be released to each ---------------- Holder and the number of Escrow Shares to be retained as provided in this Section 3.1 (the "Retained Escrow"). Cambridge and the Indemnification --------------- Representative shall make a good faith effort to agree on a reasonable portion of the Escrow Shares to retain for pending Contested Claims and Prevailing Party Awards and related expenses. Until such agreement is reached, or a determination is made in accordance with Section 2.3(c), the remaining Escrow Shares shall be the Retained Escrow. The Released Escrow shall be released to the Holders in proportion to their respective interests in the Initial Escrow Shares. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share. Within ten (10) Business Days after receipt of the Release Notice, Cambridge shall instruct the Custodian to deliver (by registered mail or overnight courier service) to each Holder evidence of ownership of the number of Escrow Shares in the names of the appropriate Holders. The Custodian shall not be required to take such action until the Custodian has received the Release Notice executed by Cambridge and the Indemnification Representative or, in the event Cambridge and the Indemnification Representative fail to execute and deliver a jointly approved Release Notice, a final award or decision which specifies the distribution of the Escrow Shares.
Minimum Shareholders’ Equity The Borrower will not permit Shareholders’ Equity at the last day of any fiscal quarter of the Borrower to be less than $500,000,000 plus 25% of the net proceeds of the sale of Equity Interests by the Borrower and its Subsidiaries after the Ninth Amendment Effective Date (other than proceeds of sales of Equity Interests by and among the Borrower and its Subsidiaries).
Release of Escrow Funds The Escrow Funds shall be paid by the Escrow Agent in accordance with the following:
Release of Escrow Fund (a) On the first Business Day after the date that is six (6) months from the closing of the Merger (the “Termination Date”), the Escrow Agent shall distribute and deliver to each Owner certificates representing shares of Parent Common Stock equal to the original number of shares placed in such Owner’s account, less that number of shares in such Owner’s account equal to the sum of (i) the number of shares applied in satisfaction of Indemnification Claims made prior to that date and (ii) the number of shares in the Pending Claims Reserve allocated to such Owner’s account, as provided in the following sentence. If, at such time, there are any Indemnification Claims with respect to which Notices have been received but which have not been resolved pursuant to Section 3 hereof or in respect of which the Escrow Agent has not been notified of, and received a copy of, a final determination (after exhaustion of any appeals) by a court of competent jurisdiction, as the case may be (in either case, “Pending Claims”), and which, if resolved or finally determined in favor of Parent, would result in a payment to Parent in excess of the Deductible, the Escrow Agent shall retain in the Pending Claims Reserve that number of shares of Parent Common Stock having a Fair Market Value equal to the dollar amount for which indemnification is sought in such Indemnification Claim in excess of the Deductible to the extent all Established Claims have not exceeded, in the aggregate, the Deductible, allocated pro rata from the account maintained on behalf of each Owner. The Parent Representative and the Holder Representative shall certify to the Escrow Agent the Fair Market Value to be used in calculating the Pending Claims Reserve, and the number of shares of Parent Common Stock to be retained therefor. Thereafter, if any Pending Claim becomes an Established Claim, the Parent Representative and the Holder Representative shall deliver to the Escrow Agent a Joint Notice directing the Escrow Agent to deliver to Parent the number of shares in the Pending Claims Reserve in respect thereof determined in accordance with paragraph 3(f) above and to deliver to each Owner the remaining shares in the Pending Claims Reserve allocated to such Pending Claim, all as specified in a Joint Notice. If any Pending Claim is resolved against Parent, the Parent Representative and the Holder Representative shall deliver to the Escrow Agent a Joint Notice directing the Escrow Agent to pay to each Owner its pro rata portion of the number of shares allocated to such Pending Claim in the Pending Claims Reserve.
