Common use of Additional Merger Consideration Clause in Contracts

Additional Merger Consideration. As promptly as practicable after the close of the Surviving Corporation's fiscal year ending December 31, 1998, and in any event on or before March 31, 1999, Surviving Corporation (on behalf of the STOCKHOLDERS) shall prepare and deliver to ITP the Combined Financial Statements, including a calculation for NTM EBITDA, prepared on a basis consistent with GAAP. ITP shall have 30 days after receipt of the Combined Financial Statements and the STOCKHOLDERS' determination of NTM EBITDA to review such information (the "NTM Review Period"). (a) If ITP accepts the STOCKHOLDERS' determination of NTM EBITDA, or if ITP fails to give notice to the STOCKHOLDERS within the NTM Review Period ("NTM Acceptance"), and if the determination of NTM EBITDA is equal to or greater than 115% of the LTM EBITDA, within 5 days of the NTM Acceptance, ITP shall deliver to the STOCKHOLDERS the respective number of additional shares of ITP Stock set forth on Annex III (the "Additional Merger Consideration"). (b) If the STOCKHOLDERS' determination of NTM EBITDA is less than 115% of the LTM EBITDA, the STOCKHOLDERS shall not be entitled to receive the Additional Merger Consideration. (c) ITP may dispute the STOCKHOLDERS' determination of NTM EBITDA by giving notice within the NTM Review Period of such dispute to the STOCKHOLDERS setting forth in reasonable detail the amounts in dispute and the basis for such dispute. If ITP fails to deliver a notice of objections during the NTM Review Period, ITP shall be deemed to have accepted the STOCKHOLDERS' determination of NTM EBITDA upon expiration of the NTM Review Period.

Additional Merger Consideration. As promptly as practicable after the close of the Surviving Corporation's fiscal year ending December 31, 1998, and in any event on or before March 31, 1999, Surviving Corporation (on behalf of the STOCKHOLDERS) The term “Additional Per Share Merger Consideration” shall prepare and deliver to ITP the Combined Financial Statements, including a calculation for NTM EBITDA, prepared on a basis consistent with GAAP. ITP shall have 30 days after receipt of the Combined Financial Statements and the STOCKHOLDERS' determination of NTM EBITDA to review such information (the "NTM Review Period"). mean: (a) If ITP accepts a cash amount equal to (i) the STOCKHOLDERS' determination of NTM EBITDA, or if ITP fails to give notice to the STOCKHOLDERS within the NTM Review Period Final Dividend ("NTM Acceptance"as defined in Section 5.1), and if any, payable by the determination Company in accordance with Section 5.1 below divided by (ii) the sum of NTM EBITDA is the number of outstanding Common Shares plus the number of Common Shares that would be issuable upon exercise of the unexercised Company Stock Options if they were exercised on a cashless basis in accordance with the terms of the Company Stock Options, assuming the Per Share Price shall be the “fair market value” of the Common Shares for purposes of such calculation (the “Cashless Exercise Option Shares”) plus the number of Common Shares issuable upon exercise of the unexercised Company Warrants, in each case outstanding as of the Effective Time (the “Additional Cash Per Share Merger Consideration”) plus (b) an ownership interest in CMC equal to or greater than 115(i) 100% of the LTM EBITDA, within 5 days membership interest in CMC divided by (ii) the sum of the NTM Acceptancenumber of outstanding Common Shares plus the Cashless Exercise Option Shares plus the number of Common Shares issuable upon exercise of the unexercised Company Warrants, ITP in each case outstanding as of the Effective Time, which interest shall deliver be represented by the Operating Agreement of CMC and this Agreement (the “Additional Equity Per Share Merger Consideration”). The Additional Per Share Merger Consideration shall be payable by the Company and all Additional Cash Per Share Merger Consideration payable with respect to the STOCKHOLDERS Common Shares (other than Dissenting Shares) and Company Warrants (other than the respective Designated Warrants) shall be deposited by the Company with the Depositary in accordance with Section 2.2(a). The Additional Cash Per Share Merger Consideration payable to the holders of the Company Stock Options shall remain with the Surviving Company following the Effective Time and shall be payable by the Surviving Corporation in accordance with Section 2.2(b). Claims Management Co shall be responsible for calculating the amount of the Additional Equity Per Share Merger Consideration to be issued promptly following Closing to holders of Common Shares (other than Dissenting Shares), Company Stock Options and Company Warrants and shall provide such information to the Parent or the Surviving Corporation for inclusion in the letter of transmittal provided for in Section 2.2(c). CMC shall issue to the Surviving Company promptly following the Closing a percentage membership interest in CMC equal to (x) the Additional Equity Per Share Merger Consideration multiplied by (y) the sum of the number of additional shares Dissenting Shares plus the number of ITP Stock set forth on Annex III (the "Additional Merger Consideration"). (b) If the STOCKHOLDERS' determination of NTM EBITDA is less than 115% Common Shares underlying any unexercised Company Warrants as of the LTM EBITDA, the STOCKHOLDERS shall not be entitled to receive the Additional Merger ConsiderationEffective Date. (c) ITP may dispute the STOCKHOLDERS' determination of NTM EBITDA by giving notice within the NTM Review Period of such dispute to the STOCKHOLDERS setting forth in reasonable detail the amounts in dispute and the basis for such dispute. If ITP fails to deliver a notice of objections during the NTM Review Period, ITP shall be deemed to have accepted the STOCKHOLDERS' determination of NTM EBITDA upon expiration of the NTM Review Period.

Additional Merger Consideration. As promptly If the Closing Date occurs after June 30, 2007, then the holders of HNB Common Stock shall share with each other in proportion to their respective holdings in such HNB Common Stock, as practicable after a part of and included within the close of Merger Consideration, a sum equal to HNB’s Net Income for the Surviving Corporation's fiscal year ending December 31period July 1, 1998, and in any event on or before March 31, 1999, Surviving Corporation (on behalf of 2007 through the STOCKHOLDERS) shall prepare and deliver to ITP the Combined Financial Statements, including a calculation for NTM EBITDA, prepared on a basis consistent with GAAP. ITP shall have 30 days after receipt of the Combined Financial Statements and the STOCKHOLDERS' determination of NTM EBITDA to review such information Closing Date (the "NTM Review Period"). (a) If ITP accepts the STOCKHOLDERS' determination of NTM EBITDA, or if ITP fails to give notice to the STOCKHOLDERS within the NTM Review Period ("NTM Acceptance"), and if the determination of NTM EBITDA is equal to or greater than 115% of the LTM EBITDA, within 5 days of the NTM Acceptance, ITP shall deliver to the STOCKHOLDERS the respective number of additional shares of ITP Stock set forth on Annex III (the "“Additional Merger Consideration"”). (b) If the STOCKHOLDERS' determination of NTM EBITDA is less than 115% of the LTM EBITDA, the STOCKHOLDERS shall not be entitled . In order to receive calculate the Additional Merger Consideration. , HNB’s accountants (c“HNB’s Accountant”) ITP may dispute shall calculate the STOCKHOLDERS' net income of HNB and HNB Bank on a consolidated basis in accordance with GAAP and consistent with HNB’s books and records as well as HNB’s past practices (“HNB’s Net Income”) for the period July 1, 2007 through the date that is three (3) business days prior to the Closing Date (the “Calculation Period”). In connection therewith, HNB’s Accountant shall prepare an income statement for HNB for the Calculation Period in which the determination of NTM EBITDA HNB’s Net Income for the Calculation Period shall be set forth (the “HNB Income Statement”). The HNB Income Statement shall be provided by giving notice within HNB’s Accountant to HNB and Mercantile Sub the NTM day after the Calculation Period ends. Upon receipt of the HNB Income Statement, Mercantile Sub shall have a period of two (2) business days (the “Review Period”) in which to make its own independent investigation and determination of HNB’s Net Income for the Calculation Period by means of reviewing HNB’s books and records along with such other further information as Mercantile Sub or its representatives deem relevant to making such determination. During the Review Period, HNB shall make available to Mercantile Sub or its representatives HNB’s books and records and other information for this purpose. The amount of HNB’s Net Income for the Calculation Period as set forth on the HNB Income Statement shall be deemed conclusive unless Mercantile Sub notifies HNB, in writing, during the Review Period of any dispute Mercantile Sub has with respect thereto specifying therein the particulars of any such dispute to disagreements (the STOCKHOLDERS setting forth in reasonable detail the amounts in dispute and the basis for such dispute“Dispute Notice”). If ITP fails to deliver Mercantile Sub does not give HNB a notice of objections Dispute Notice during the NTM Review Period, ITP then the Closing of the Merger shall proceed as scheduled. However, if Mercantile Sub does give HNB a timely Dispute Notice as to any amount on the HNB Income Statement or as to the calculation of HNB’s Net Income for the Calculation Period, as the case may be, and such dispute can not be resolved by the Parties through reasonable efforts within five (5) business days after the giving of the Dispute Notice, then such dispute or disputes shall be deemed submitted to have accepted an independent accounting firm selected by mutual agreement of the STOCKHOLDERS' Parties (the “Independent Accountant”). The Parties will use reasonable efforts to cause the Independent Accountant to resolve all disputed issues within ten (10) days after the matter has been submitted or as soon thereafter as practicable. In this regard, each Party shall cooperate with the other and shall submit all documentation or information to the Independent Accountant as shall be reasonably required by such Independent Accountant to promptly make its determination. The determination of NTM EBITDA upon expiration the Independent Accountant shall be final, conclusive and binding on the Parties hereto. The cost of the NTM Review Independent Accountant shall be borne equally by the Parties. If Mercantile Sub gives HNB a Dispute Notice, as aforesaid, the Closing of the Merger shall be postponed and delayed for a period of up to thirty (30) days from the date of appointment of the Independent Accountant during which time the Independent Accountant shall resolve all disputed issues and make a final determination of HNB’s Net Income for the Calculation Period. The Closing shall be rescheduled by the Parties when a final determination of HNB’s Net Income for the Calculation Period has been made as set out above. In addition, once HNB’s Net Income for the Calculation Period is either conclusively or finally determined, as aforesaid, the Additional Merger Consideration shall be calculated by adding together (i) HNB’s Net Income for the Calculation Period and (ii) the Average Daily Net Income of HNB multiplied by the number of days lapsed from the last day of the Calculation Period to the Closing Date (the “Interim Days”). The Average Daily Net Income of HNB shall be the quotient of HNB’s Net Income for the Calculation Period and the number of days in such Calculation Period. The Per Share Merger Consideration shall then be calculated based on the foregoing by the following formula: The Per Share Merger Consideration shall equal the quotient of (i) the Merger Consideration set out in Section 2.01(c) plus the Additional Merger Consideration and (ii) 208,913. The Per Share Merger Consideration, as so modified shall then be paid to the holders of HNB Common Stock as provided in Section 2.02. Notwithstanding the foregoing, the Additional Merger Consideration shall equal HNB’s Net Income for the Calculation Period only (and shall not include the Net Income of HNB for the Interim Days) if HNB’s Net Income for the Calculation Period, as initially determined by HNB’s Accountant is twenty percent (20%) or more in excess of HNB’s Net Income for the Calculation Period as finally determined by the Independent Accountant.