Second Contingent Payment. (i) Subject to the terms and conditions of this Section 2.5, Buyer shall, if applicable, pay to Sellers in accordance with the framework set forth on Annex 2.2, a certain payment with respect to the First Earnout Measurement Period and the fifty two (52) week period ending January 30, 2021 (the "Second Earnout Measurement Period"), based on the achievement of a certain Average Earnout EBITDA as specified in Section 2.5(b)(ii). The payment, if any, earned in accordance with Section 2.5(b)(ii) of this Agreement shall be referred to herein as the "Second Contingent Payment."
(ii) The Second Contingent Payment, if any, shall be determined as follows:
(A) If the Average Earnout EBITDA is equal to or greater than the Upper Average EBITDA Threshold, the Second Contingent Payment shall equal the sum of (1) fifteen million dollars ($15,000,000) plus (2) the excess, if any, of ten million dollars ($10,000,000) over the First Contingent Payment.
(B) If the Average Earnout EBITDA is equal to or greater than the Lower Average EBITDA Threshold, but less than the Upper Average EBITDA Threshold, the Second Contingent Payment to be paid shall be determined based on linear interpolation between the Lower Average EBITDA Threshold and the Upper Average EBITDA Threshold, and shall be an amount between $0 and $15,000,000, as illustrated on Annex 2.5. For the avoidance of doubt, if the Average Earnout EBITDA is less than the Lower Average EBITDA Threshold, no Second Contingent Payment, or any portion thereof, shall be due pursuant to this Agreement.
Second Contingent Payment. Subject to clauses (h), (i) and (j) below, within five business days after the Annual Determination for calendar year 2011 and any adjustments thereto shall have become binding on the parties in accordance with the Capital C LP Agreement, the Purchaser shall pay to Capital C Holdco the Second Contingent Payment ("SAP"), calculated as follows: SAP = Applicable Percentage x 36% x 2011 PBT ; provided, however, in the event that 2011 PBT were less than $3,400,000, then SAP shall equal (A) the excess, if any, of (i) 2011 PBT over (ii) $2,040,000, multiplied by (B) 90%, multiplied by (C) the Applicable Percentage; provided further, however, in the event that 2011 PBT were greater than $4,000,000 (such excess, the “2011 Excess”), then the Purchaser shall pay to Capital C Holdco an additional payment calculated as follows: the Applicable Multiplier (as defined below) multiplied by the 2011 Excess (the “2011 Top-Up”).
Second Contingent Payment. For a period of ten (10) years from the date the Purchaser, its affiliates, representatives, agents, successors or assigns (collectively "Purchaser Affiliates") makes its first commercial sale of a Product (the "Second Contingent Payment Period"), the Purchaser shall make a contingent payment to the Company in an amount equal to four percent (4%) of Net Product Revenue (the "Second Contingent Payment"), payable in cash by check or wire transfer, in accordance with Section 1.6.
Second Contingent Payment. 2.03(a)(ii) Section 9.02 Liabilities............................ 10.02(a)(xxxiv) Securities Act...................................... 3.07 Series G Warrant(s).................................
Second Contingent Payment. Purchaser shall pay to Sellers an amount equal to One Hundred Thirty-Five Percent (135%) of the 1999 Excess Operating Income (the "Second Contingent Payment").
Second Contingent Payment. The Second Contingent Payment, if any, shall be paid by Purchaser to Sellers within 120 days after December 31, 1999.
Second Contingent Payment. (i) If the Management Fee Revenue determined as provided herein in respect of calendar year 2010 is at least equal to $160,000,000, Seller shall be Table of Contents entitled to receive a payment (the “Second Contingent Payment”) determined in accordance with the provisions of this Section 2.9(b) as follows:
(1) if cumulative Management Fee Revenue in respect of the period from January 1, 2008 to December 31, 2010 (the “Second Evaluation Period”) is less than $525,000,000, then the Second Contingent Payment shall equal $0.00;
(2) if cumulative Management Fee Revenue in respect of the Second Evaluation Period is equal to or greater than $525,000,000 and less than $575,000,000, then the Second Contingent Payment shall equal an amount between $0.00 and fifty percent (50)% of the Catch-up Amount, determined by straight-line interpolation;
(3) if cumulative Management Fee Revenue in respect of the Second Evaluation Period is equal to or greater than $575,000,000 and less than $625,000,000, then the Second Contingent Payment shall equal the sum of (x) fifty percent (50%) of the Catch-Up Amount plus (y) an amount between $0.00 and the sum of $238,000,000 plus fifty percent (50%) of the Catch-up Amount, determined by straight-line interpolation;
(4) if cumulative Management Fee Revenue in respect of the Second Evaluation Period is equal to $625,000,000, then the Second Contingent Payment shall equal $238,000,000 plus the Catch-up Amount;
(5) if cumulative Management Fee Revenue in respect of the Second Evaluation Period is greater than $625,000,000 and less than $725,000,000, then the Second Contingent Payment shall equal the sum of (x) $238,000,000 plus (y) the Catch-up Amount plus (z) an additional amount between $0.00 and $357,000,000, determined by straight-line interpolation; or
(6) if cumulative Management Fee Revenue in respect of the Second Evaluation Period is equal to or greater than $725,000,000, then the Second Contingent Payment shall equal $595,000,000 plus the Catch-Up Amount.
(ii) Notwithstanding anything to the contrary in this Agreement, in the event of a MFR Adjustment Event the Management Fee Revenue thresholds but not the Second Contingent Payment amounts identified in clauses (1) through (6) of this Section 2.9(a)(i) shall be increased in each instance by the MFR Adjustment Amount.
(iii) No later than 45 days following December 31, 2010, Buyer shall prepare and deliver to Seller a Contingent Payment Certificate setting forth Buyer’s good fait...
Second Contingent Payment. The “Second Contingent Payment” shall equal 67% of the Backlog obtained by Ancore from the date of this Agreement through April 30, 2003; provided, however, that the aggregate amount of or payable under the Second Contingent Payment shall not exceed the “Second Contingent Payment Cap”. The “Second Contingent Payment Cap” shall be calculated as the difference of (a) $4,688,000 minus (b) the amount by which the Next Phase Purchase Order or the Next Phase Receipts is used to satisfy the P.O. Threshold or the Receivable Threshold, respectively. In the event that the aggregate amount of the Second Contingent Payment actually paid by OSI exceeds the Second Contingent Payment Cap, the excess amount shall be deducted, dollar for dollar, from the first subsequent PFNA Amount. The Second Contingent Payment shall be paid on or before May 10, 2003 except that interim payments will be made for all accumulated Backlog each time at least $1,400,000 of accumulated Backlog has been evidenced. “Backlog” means the aggregate amount of or payable under all of the following with respect to which no incremental Second Contingent Payment has been made:
Second Contingent Payment. As additional consideration for the sale and transfer of the Membership Interests, if (i) the last publicly-quoted sale price of Holdings Stock is no less than $8.75 per share (subject to adjustment for any stock splits, reverse stock splits and combinations after the date hereof) for any 20 trading days within any 30-trading day period on or before June 30, 2011 or (ii) Holdings’ EBITDA for any of the fiscal years ended June 30, 2009, 2010 or 2011 is at least $10,000,000, then Holdings shall issue to the Members the difference of 3,000,000 shares of Holdings Stock less any shares of Holdings Stock previously issued or then issuable under Section 3.04(a) (subject to adjustment for any stock splits, reverse stock splits and combinations after the date hereof) (the “Second Contingent Payment”). The Second Contingent Payment shall, if applicable, be issued to the Members within ten days following the satisfaction of either of the conditions set forth in this Section 3.04(b); provided that the determination of Holdings’ EBITDA shall be made upon the filing of Holdings’ Form 10-K for the fiscal year ended June 30, 2009, 2010 or 2011, as applicable.
Second Contingent Payment. This Second Amendment replaces and supersedes in its entirety the First Amendment to Purchase Agreement, dated effective as of June 25, 1998. Promptly following the execution of this Second Amendment, the Note and the Deed of Trust and Security Agreement shall be amended by the First Amendment to Promissory Note and the First Amendment to Deed of Trust and Security Agreement, in the forms of Exhibits A and B hereto, respectively. These amendments shall be executed by Buyers promptly after their execution of this Second Amendment. Buyers shall cause such First Amendment to Deed of Trust and Security Agreement to be recorded promptly in Lewix xxx Clarx Xxxnty, Montana, at Buyers' expense Allocation of Proceeds Received from State of Montana or Other Governmental Agency. Within 30 days after receipt by any of the Buyers or the Partnership of any proceeds from the State of Montana or any governmental agency (collectively, the "Government") as a result of any or all of the following: A final judgment or judgments rendered against the Government by any court as a result of any actions filed by Buyers or the Partnership to seek compensation for economic losses or property losses suffered by Buyers or the Partnership due to actions and legislation by the Government, including but not limited to the passage on November 3, 1998 of Montana Ballot Initiative No. 137; or A settlement of any such actions; or A transaction or transactions with the Government to purchase any or all of the McDonald Gold Project or to obtain an agreement or any other commitment of any kind from Canyon Resources, CR Montana, the Partnership or any of their Affiliates that the McDonald Gold Project will not be developed; Buyers, or the Partnership, or both of them, as applicable, shall pay to Seller one-third (1/3) of such proceeds after deduction of legal fees and other costs (including, but not limited to expert witness fees and reasonable expenses incurred by legal counsel) that are incurred by Buyers and the Partnership, are directly related to the recovery of such proceeds, and are not recovered by Buyers or the Partnership, from the Government. Solely for purposes of illustration of the foregoing, if Buyers' and the Partnership's total payments from the Government were $102,000,000 and their total legal fees and other costs were $3,000,000, Buyers and the Partnership collectively would pay Seller $33,000,000. Buyers, the Partnership and Seller understand and agree that, except as otherw...
