Common use of Deferred Payments Clause in Contracts

Deferred Payments. On each of the first anniversary and the second anniversary of the Closing Date (each, a "Deferred Payment Date"), Buyer shall pay to Seller, as additional Purchase Price, an additional payment (each, a "Deferred Payment") equal to $3,250,000. Each such Deferred Payment shall be paid by issuing and delivering to Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Shares") equal to the number determined by dividing the amount of such Deferred Payment by the average per share closing price for shares of common stock of Buyer on the New York Stock Exchange for the ten trading day period ending on the fifth trading day prior to the Deferred Payment Date for such Deferred Payment (the "Average Closing Price"); provided that no later than five days prior to such Deferred Payment Date, either Buyer or Seller may deliver to the other a written irrevocable election (a "Cash Election") to have a percentage (not to exceed 67%) of such Deferred Payment (the "Cash Percentage"), paid in cash in lieu of Deferred Payment Shares, in which case the Deferred Payment shall be paid by (a) delivering to Seller cash in an amount equal to the Cash Percentage (provided that if both Buyer and Seller deliver a Cash Election with respect to the same Deferred Payment, the Cash Percentage for such Deferred Payment shall be the higher of the percentages contained in such Cash Elections) of such Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares equal to the number determined by dividing the difference between the amount of such Deferred Payment and the amount of the cash payment described in clause (a) by the Average Closing Price.

Deferred Payments. On (1) Within 30 business days following each of the first two year anniversary and the second four year anniversary of the Adjusted Closing Date Date, the Buyer shall cause to be prepared and delivered to the Sellers' Representative a statement setting forth the Buyer's calculation of the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be (each, a "Deferred Payment DateStatement"), Buyer shall pay to Seller. (2) A Deferred Payment Statement and the Buyer's calculation of the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as additional Purchase Pricethe case may be, an additional payment (each, a "Deferred Payment") equal to $3,250,000. Each such Deferred Payment shall be paid by issuing conclusive and delivering to Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Shares") equal to the number determined by dividing the amount of such Deferred Payment by the average per share closing price for shares of common stock of Buyer binding on the New York Stock Exchange for Buyer and the ten trading day period ending on Sellers unless the fifth trading day prior to Sellers' Representative shall notify the Deferred Payment Date for such Deferred Payment Buyer in writing (the "Average Closing PriceDispute Notice"); provided that no later than five ) within 15 business days prior after receipt thereof of any objection to such Deferred Payment DateStatement and the Buyer's calculation of the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, either Buyer or Seller as the case may deliver be, specifying in reasonable detail the nature and amount of such objection. Upon receipt of each Deferred Payment Statement, the Sellers' Representative shall be afforded reasonable access to the other a written irrevocable election (a "Cash Election") books, records and work papers used to have a percentage (not to exceed 67%) of prepare such Deferred Payment Statement and the related Average Return on Investment. Any item or amount not specifically objected to in the Dispute Notice shall be binding and conclusive on the Buyer and the Sellers. The Buyer and the Sellers' Representative shall attempt to resolve any such dispute and agree in writing upon a final Deferred Payment Statement and a final Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, which such final Deferred Payment Statement and final Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, shall be conclusive and binding on the Buyer and the Sellers. If the Buyer and the Sellers' Representative cannot so agree within 20 days after the delivery by the Sellers' Representative to the Buyer of the Dispute Notice, then either the Buyer or the Sellers' Representative may submit such dispute to an independent accounting firm to be agreed upon by the Buyer and the Sellers' Representative (the "Cash PercentageIndependent Accountant"). The Independent Accountant shall, paid as promptly as practicable, review only those items and amounts specifically set forth and objected to in cash in lieu the Dispute Notice and resolve the dispute with respect to such specific items and amounts. The fees and expenses of the Independent Accountant shall be shared equally by the Buyer, on the one hand, and the Sellers, on the other hand, and the decision of the Independent Accountant with respect to such Deferred Payment Statement and the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, shall be final and binding on the Buyer and the Sellers. (3) Within five business days following the determination of a final Deferred Payment Statement and the final Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, pursuant to Section 1.4(2), the Buyer shall deliver to each Seller his or her Pro Rata Portion of any Deferred Payment earned during such Deferred Payment Period; provided, however, that, subject to Section 1.4, the Buyer shall have no obligation to deliver or otherwise pay to Sellers any Deferred Payment earned during any such Deferred Payment Period if the Average Return on Investment for such period is less than 15.75%. See Exhibit A attached hereto for example calculations of Deferred Payment Shares, amounts at varying Average Return on Investment levels. (4) Notwithstanding anything to the contrary in which case this Section 1.4: (a) If the Buyer does not deliver the Deferred Payment earned during the First Deferred Payment Period solely as a result of the fact that the final Average Return on Investment for such period was less than 15.75%, within 30 business days following the three year anniversary of the Adjusted Closing Date, the Buyer shall cause to be prepared and delivered to the Sellers' Representative a Deferred Payment Statement setting forth the Buyer's calculation of the Average Return on Investment for the Adjusted First Deferred Payment Period. The Deferred Payment Schedule and the Buyer's calculation of the Average Return on Investment for the Adjusted First Deferred Payment Period shall be paid by (a) delivering to Seller cash in an amount equal subject to the Cash Percentage (provided that if both Buyer dispute resolution provisions of Section 1.4(2). If the final Average Return on Investment for the Adjusted First Deferred Payment Period is not less than 15.75%, within five business days following the determination of the final Deferred Payment Statement and Seller deliver a Cash Election with respect to the same final Average Return on Investment for the Adjusted First Deferred PaymentPayment Period, the Cash Percentage Buyer shall deliver to each Seller his or her Pro Rata Portion of the Deferred Payment that would have been paid for the First Deferred Payment Period if the Average Return on Investment for such Deferred Payment shall be the higher of the percentages contained in such Cash Elections) of such Deferred Payment and period had been 15.75% or greater. (b) issuing and delivering to Seller a number of If the Buyer does not deliver the Deferred Payment Shares equal earned during the Second Deferred Payment Period solely as a result of the fact that the final Average Return on Investment for such period was less than 15.75%, within 30 business days following the five year anniversary of the Adjusted Closing Date, the Buyer shall cause to be prepared and delivered to the number determined by dividing the difference between the amount of such Sellers' Representative a Deferred Payment Statement setting forth the Buyer's calculation of the Average Return on Investment for the Adjusted Second Deferred Payment Period. The Deferred Payment Schedule and the amount Buyer's calculation of the cash payment described in clause (a) by Average Return on Investment for the Adjusted Second Deferred Payment Period shall be subject to the dispute resolution provisions of Section 1.4(2). If the final Average Return on Investment for the Adjusted Second Deferred Payment Period is not less than 15.75%, within five business days following the determination of the final Deferred Payment Statement and the final Average Return on Investment for the Adjusted Second Deferred Payment Period, the Buyer shall deliver to each Seller his or her Pro Rata Portion of the Deferred Payment that would have been paid for the Second Deferred Payment Period if the Average Return on Investment for such period had been 15.75% or greater. (c) Until the end of the Second Deferred Payment Period (or, if applicable, the Adjusted Second Deferred Payment Period), the Buyer shall not cause the Company to acquire all or substantially all of the equity securities or assets of, or merge or consolidate with or into, any other entity unless such acquisition, merger or consolidation is mutually acceptable to both the Seller's Representative and the Buyer. (d) Seller acknowledges and agrees (i) that Buyer and its affiliates may acquire and control other investment advisors either before or after the Closing Priceand (ii) that neither Buyer nor its affiliates is under any obligation to provide new business opportunities (including, without limitation, acquisitions of investment advisory business, new accounts and potential new employees) to the Company either before or after the Closing.

Deferred Payments. On each In the event of a distribution to the first anniversary and the second anniversary of the Closing Date Equityholders pursuant to Section 1.4 (each, a "Deferred Payment Date"Purchase Price Adjustment), Buyer shall pay to Seller, as additional Purchase Price, an additional payment Section 1.5(f) (each, Representative Expense Fund) or Section 1.6 (Escrow) (each a "“Deferred Payment") equal to $3,250,000. Each such Deferred Payment shall be paid by issuing and delivering to Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights”), of Buyer ("Deferred Payment Shares"the Representative shall recalculate the amount that would have been distributed to each Equityholder pursuant to Section 1.2(a)-(f) equal to the number determined by dividing if the amount of such Deferred Payment by (plus any prior Deferred Payments distributed) had been added to clause (i) of the average per share closing price for shares definition of common stock of Buyer on “Ordinary Share Amount” and distributed at Closing (the New York Stock Exchange for the ten trading day period ending on the fifth trading day prior “Adjusted Total Payment”) and each Equityholder shall be entitled to the Deferred Payment Date for such Deferred Payment (the "Average Closing Price"); provided that no later than five days prior to such Deferred Payment Date, either Buyer or Seller may deliver to the other a written irrevocable election (a "Cash Election") to have a percentage (not to exceed 67%) portion of such Deferred Payment (the "Cash Percentage"), paid in cash in lieu of Deferred Payment Shares, in which case the Deferred Payment shall be paid by (a) delivering to Seller cash in an amount equal to (i) such Equityholder’s Adjusted Total Payment, minus (ii) the Cash Percentage (provided that if both Buyer and Seller deliver a Cash Election with respect amount previously paid to such Equityholder pursuant to Section 1.2 as of the same date of distribution of such Deferred Payment. For each Deferred Payment, the Cash Percentage for such Representative shall deliver to Buyer a payment schedule, in substantially the form of the Closing Payment Schedule, a form of which is attached hereto as Exhibit G (each a “Deferred Payment shall be Schedule”), including the higher of the percentages contained in such Cash Elections) of such Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares equal to the number determined by dividing the difference between the total amount of such Deferred Payment and the amount portion of Table of Contents such Deferred Payment to be paid to each Equityholder. Any such amounts shall be rounded to the nearest whole cent. The Equityholders acknowledge that the Closing Payment Schedule (as defined below) includes the applicable formulas which will enable the Representative to calculate the distribution of any Deferred Payments to the Equityholders in accordance with this Section 1.2(h). Notwithstanding anything to the contrary herein, in the event that following the Closing, the Representative reasonably believes that there is a mistake in the formulas underlying the calculation of the cash payment described distribution of any Deferred Payments, Representative will revise the calculations to enable the accurate distribution of the Deferred Payments to the Equityholders in clause (a) accordance with the terms herein. Parent and Buyer shall be entitled to rely entirely on the applicable Deferred Payment Schedule in connection with distributing a Deferred Payment and neither the Equityholders nor the Representative shall be entitled to make any claim in respect of the allocation of such amount made by the Average Closing PriceBuyer or the Paying Agent to the extent it was distributed in a manner consistent with the applicable Deferred Payment Schedule.

Deferred Payments. On each (a) At the Closing, Investor (i) shall execute and deliver to WRI a promissory note substantially in the form of Exhibit E hereto (the first anniversary “Fixed Payment Note,” amounts payable in respect of which being referred to as the “Fixed Payment Obligation”) and (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation and the second anniversary of Fixed Payment Note shall be referred to as the Closing Date (each, a "“Deferred Payment Date"), Buyer Notes,” the Contingent Payment Obligation and the Fixed Payment Obligation shall pay be referred to Seller, as additional Purchase Price, an additional payment (each, a "Deferred Payment") equal to $3,250,000. Each such the “Deferred Payment shall be paid by issuing Obligations,” and delivering to Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Shares") equal to the number determined by dividing the amount of such Deferred Payment by the average per share closing price for shares of common stock of Buyer on the New York Stock Exchange for the ten trading day period ending on the fifth trading day prior payments made pursuant to the Deferred Payment Date Obligations shall be referred to as the “Deferred Payments”). (b) Under the Fixed Payment Note, and subject to the terms thereof, Investor shall pay to WRI $2,000,000 each calendar quarter (prorated for each partial quarter), which amount shall be inclusive of accrued interest at a rate of 10% per annum on the unpaid balance of the Fixed Payment Note; provided, however, that such Deferred amount shall be increased by the amount of any Fixed Payment Note payment postponed from a prior calendar quarter pursuant to the terms of the Fixed Payment Note. Payments under the Fixed Payment Note will be payable in arrears commencing with a payment for the quarter ended December 31, 2008, until the earlier of (i) total principal payments of $27,215,982 having been made, and (ii) December 31, 2012 (the "Average Closing Price"“Maturity Date”); provided that no later than five days prior to such Deferred Payment . On the Maturity Date, either Buyer all remaining principal and accrued interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid. (c) The Contingent Payment Obligation is based on the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”), as determined under Section 45(e) of the Internal Revenue Code of 1986, as amended (the “IRC” or Seller may deliver “Code”), attributable to Absaloka’s production and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the other a written irrevocable election (a "Cash Election") Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to have a percentage (not the terms thereof, Investor is required pay to exceed 67%) of such Deferred Payment (the "Cash Percentage"), paid in cash in lieu of Deferred Payment Shares, in which case the Deferred Payment shall be paid by (a) delivering to Seller cash in WRI for each calendar quarter an amount equal to the Cash Percentage excess of (i) 90% of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (ii) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1. (d) Investor shall make the Deferred Payments to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that if both Buyer any Deferred Payments shall be paid into the Approval Escrow until the satisfaction or waiver of the Second Payment Conditions in accordance with the procedures set forth in Section 6. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, shall be paid to WRI. (e) The Deferred Payment Obligations shall be recourse obligations of Investor and Seller deliver shall be secured by a Cash Election with pledge by Investor to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto (the “Investor Pledge”). In addition, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests of Investor (“Investor Parent”), shall be obligated, pursuant to a Guaranty substantially in the form of Exhibit H hereto (the “Investor Parent Guaranty”), to guaranty the payment by Investor of all Deferred Payments. The amount of the guaranty shall be limited to 90% of the Indian Coal Production Tax Credits allocated by Absaloka to Investor in respect of the period covered by the Invoice, subject to the same Deferred Payment, aggregate limit set forth below (the Cash Percentage for such Deferred Payment “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be the higher of the percentages contained in such Cash Elections) of such Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares equal to the number determined reduced by dividing the difference between the amount of any cash distributions made by Absaloka (including tax distributions) to Investor during such calendar quarter which are applied by Investor toward payment of the Deferred Payment and Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of (i) $70,000,000 or (ii) 90% of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributions) to Investor at any time which are or were applied by Investor toward payment of the cash payment described Deferred Payment Obligations, or paid to Absaloka in clause the event of a Cash Deficit, as provided for in subsection (af) below. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Average Closing PriceManager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor shall be entitled to suspend the Deferred Payments until such tax information is received. Upon receipt of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Payments.

Deferred Payments. On each Notwithstanding anything to the contrary contained in this Agreement, the Corporate Taxpayer shall have no obligation to make any Tax Benefit Payments to the extent arising out of the first anniversary and Additional Basis Recovery or the second anniversary of R&D Credit under this Agreement until the Payment Date applicable to the third Taxable Year after the Closing Date (eachbut in no event including any Taxable Year beginning after December 31, a "Deferred Payment Date"2022) (the “Deferral Period”). The amount of any Cumulative Net Realized Tax Benefit relating to any portion of the Deferral Period, together with any Interest Amount relating thereto as determined under Section 3.1(b), Buyer shall pay to Seller, as additional Purchase Price, an additional payment (each, a "Deferred Payment") equal to $3,250,000. Each such Deferred Payment shall be paid by issuing and delivering to Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Shares") equal to the number determined by dividing Stockholder ratably over the amount nine (9) Taxable Year period starting with the Fourth Tax Year (any such payment, a “Deferred Payment”). Notwithstanding anything to the contrary contained in this Agreement, the Corporate Taxpayer shall have no obligation to make any Tax Benefit Payments to the extent arising out of such Deferred the Seller Expense Deductions under this Agreement until the Payment by Date applicable to the average per share closing price for shares of common stock of Buyer on Fourth Tax Year (the New York Stock Exchange for the ten trading day period ending on the fifth trading day “First Seller Expense Deduction Payment Date” with all Taxable Years (or portions thereof) prior to the Deferred First Seller Expense Deduction Payment Date for such Deferred Payment (the "Average Closing Price"“Seller Expense Deduction Deferral Period”); provided that no later than five days prior to such Deferred Payment Date, either Buyer or Seller may deliver . The Tax Benefit Payments attributable to the other a written irrevocable election (a "Cash Election") to have a percentage (not to exceed 67%) of such Deferred Payment (the "Cash Percentage"Seller Expense Deductions, together with any Interest Amount relating thereto as determined under Section 3.1(b), paid in cash in lieu of Deferred Payment Shares, in which case the Deferred Payment shall be paid by (a) delivering to Seller cash in an amount equal to the Cash Percentage Stockholder ratably over the three (provided that if both Buyer and 3) Taxable Year period following the end of the Seller deliver a Cash Election with respect Expense Deduction Deferral Period. Notwithstanding anything to the same Deferred Paymentcontrary contained in this Agreement, the Cash Percentage for such Deferred Payment Seller Expense Deductions shall be deemed to have created a Realized Tax Benefit during the higher Seller Expense Deduction Deferral Period, and Corporate Taxpayer shall make Tax Benefit payments attributable to the Seller Expense Deductions, together with any Interest Amount relating thereto as determined under Section 3.1(b), ratably over the three (3) Taxable Year period following the end of the percentages contained in such Cash Elections) of such Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares equal to the number determined by dividing the difference between the amount of such Deferred Payment and the amount of the cash payment described in clause (a) by the Average Closing PriceExpense Deduction Deferral Period.

Deferred Payments. On each 2.1 Provided the Company is not at the time Insolvent (within the meaning of Section 4.1), the Trustee shall from time to time, upon the written directives of the first anniversary Plan Administrator, distribute from the Trust Fund one or more Deferred Payments due under the Plan to such individuals, in such amounts and at such times as may be specified in the second anniversary directives. Each distribution so made shall be deducted from and charged against the Trust Account of the Closing Date (each, a "Participant to whom the Deferred Payment Date")is distributed. 2.2 The Trustee shall be obligated to make the Deferred Payments out of the Trust Fund in accordance with the most recent payment schedule in effect for each Participant, Buyer shall pay to Seller, as additional Purchase Price, an additional payment (each, a "Deferred Payment") equal to $3,250,000provided the Company is not otherwise at the time Insolvent. Each such Deferred Payment shall be paid by issuing adjusted for additional investment earnings to which the Participant may become entitled under the Plan for the period prior to payment, and delivering to Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Shares") equal to the number determined by dividing the amount of such Deferred Payment shall, upon distribution by the average per share closing price Trustee, be deducted from and charged against the Participant's Trust Account. 2.3 The Trustee shall incur no liability for shares making any distribution in accordance with directives received pursuant to the provisions of common stock Section 3.1 or Section 3.2 and shall be under no duty to make inquiry as to whether any distribution effected in accordance with such directives is made pursuant to the provisions of Buyer on the New York Stock Exchange Plan. The Trustee shall not be liable for the ten trading day period ending on proper application of any part of the fifth trading day prior Trust Fund to the extent distributions are made in accordance with Section 3.1 or Section 3.2, nor shall the Trustee be responsible for the adequacy of the Trust Fund to meet and discharge the obligations and liabilities of the Company under the Plan. 2.4 The Trustee shall be responsible for the collection of all federal and state income tax withholding requirements applicable to each distribution, provided the Plan Administrator furnishes the Trustee with information about each Participant that is necessary for calculating the amount of the withholding taxes. 2.5 The Trustee may make any distributions required to be made hereunder by mailing a check for the amount thereof to the person to whom such distribution is to be made at such address as may have last been furnished to the Trustee, or if no such address shall have been so furnished, to such person in care of the Company at its principal office. 2.6 Should the Trustee determine that the individual Trust Accounts maintained for one or more Participants do not at the time have a sufficient balance to make all the Deferred Payments then due and payable to such Participants, then the Trustee shall nevertheless make the Deferred Payments to one or more of such participants to the extent there are sufficient assets in each of their individual Trust Accounts and shall promptly notify the Plan Administrator of any existing deficiency. The Company shall correct the specified deficiency by making payments out of its general assets to each affected Participant. 2.7 Should it be determined, whether by final decision of a court of competent jurisdiction or by closing agreement under Code Section 7121 between the Internal Revenue Service and the Participant, that the Participant will, by reason of his or her interest in the Plan, recognize taxable income under the federal tax laws before the date the corresponding Deferred Payment Date or Payments would otherwise be made to such Participant pursuant to the Plan, the Plan Administrator shall thereupon provide written directives to the Trustee to distribute out of the Trust Account maintained for such Deferred Payment Participant, as soon as administratively feasible, whichever of the following amounts the Plan Administrator in its sole discretion deems appropriate under the circumstances: (the "Average Closing Price"); provided that no later than five days prior to such Deferred Payment Date, either Buyer or Seller may deliver to the other a written irrevocable election (a "Cash Election"i) to have a percentage (not to exceed 67%) of such Deferred Payment (the "Cash Percentage"), paid in cash in lieu of Deferred Payment Shares, in which case the Deferred Payment shall be paid by (a) delivering to Seller cash in an amount equal to the Cash Percentage (provided that if both Buyer federal, state and Seller deliver a Cash Election local income tax liability incurred by the Participant with respect to the same such taxable income, or (ii) one or more Deferred Payment, the Cash Percentage for such Deferred Payment shall be the higher of the percentages contained in such Cash Elections) of such Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares Payments equal to the number determined by dividing the difference between the full amount of such Deferred Payment taxable income. 2.8 Should the Company receive an opinion of counsel, in form and substance satisfactory to the Plan Administrator, that: (i) on the basis of a published regulation, ruling or other general announcement of the Internal Revenue Service, the existence of the Trust Fund will result in the immediate recognition of taxable income by the individuals for whom the Trust Accounts are maintained hereunder, or (ii) on the basis of a published regulation or other general announcement or advisory opinion of the U.S. Department of Labor, the existence of the Trust Fund will result in the characterization of the Plan as a funded employee pension plan under Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), then the Trust shall immediately terminate and the amount Plan Administrator shall thereupon provide written directives to the Trustee to liquidate the assets of the Trust Fund to the extent necessary to distribute to each Participant, as soon as administratively feasible, sufficient cash proceeds to effect payment described of whichever of the following amounts the Plan Administrator in clause its sole discretion deems appropriate under the circumstances: (aA) the amount necessary to satisfy the federal, state and local income tax liability incurred by the Average Closing PriceParticipant with respect to his or her Trust Account, or (B) the amount necessary to pay off the entire balance then outstanding in such Participant's Trust Account. Such distribution shall be made notwithstanding any payment elections to the contrary that the Participants may otherwise have outstanding under the Plan. Any remaining proceeds of the Trust Fund shall then be paid to the Company.

Deferred Payments. On each Following the occurrence of one or more Adjustment Events, the first anniversary and the second anniversary of the Closing Date District may defer an amount equal to an Annual Baseline Increase attributable to a given future Service Year or Services Years (each, a "Deferred Payment Date"), Buyer shall pay to Seller, as additional Purchase Pricei.e., an additional payment (each, a "Deferred Payment") amount equal to $3,250,000. Each such Deferred Payment shall be paid by issuing and delivering to Seller unregistered shares of common stock, par value $.001 per share a three percent (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Shares"3%) equal increase to the number determined by dividing the amount of such Deferred Payment by the average per share closing price for shares of common stock of Buyer on the New York Stock Exchange Baseline Rate for the ten trading day period ending on applicable Services Year(s)) by providing the fifth trading day City with written notice no less than sixty (60) days prior to the Deferred Payment Date applicable Service Year (or the initial Service Year if the District is electing to defer an amount attributable to multiple Service Years). Any Adjustment Event may be used as a basis to defer an Annual Baseline Increase due for such Deferred Payment (the "Average Closing Price"one or more entire future Service Year(s); provided that in no later event over the Term may the District defer an Annual Baseline Increase(s) attributable to more than five days prior (5) Service Years on a cumulative basis. Any amount deferred pursuant to such this Section 3.e shall be referred to as a “Deferred Payment”. Any Deferred Payment(s) shall be repaid in the years following the deferral based upon the length of the deferral period. For example, if the District elects, at a given time, to defer the Annual Baseline Increase due for one (1) Service Year, the associated Deferred Payment Date, either Buyer or Seller may deliver to the other a written irrevocable election (a "Cash Election") to have a percentage (not to exceed 67%) of such Deferred Payment (the "Cash Percentage"), paid in cash in lieu of Deferred Payment Sharesmust be repaid, in equal quarterly installments, during the Service Year following the Service Year to which case the Deferred Payment shall applies and at the same time the District makes or would otherwise be paid by obligated to make payments pursuant to Section 3.g below for such following Service Year; or if the District elects, at a given time, to defer the Annual Baseline Increases for three (a3) delivering Service Years, the associated Deferred Payment must be repaid, in equal quarterly installments, during the three (3) Service Years following the three (3) Service Years to Seller cash in an amount equal which the Deferred Payment applies and at the same time the District makes or would be obligated to make payments pursuant to Section 3.g below. Subject to the Cash Percentage (provided that if both Buyer limits set forth above, the District may elect to defer Annual Baseline Increases in accordance with the terms hereof on one or more occasions. No interest shall accrue and Seller deliver a Cash Election be payable with respect to the same any Deferred Payment, the Cash Percentage for such . The District’s obligation to repay any Deferred Payment in accordance with the terms of this Section 3.e shall be survive the higher expiration or earlier termination of the percentages contained in such Cash Elections) of such Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares equal to the number determined by dividing the difference between the amount of such Deferred Payment and the amount of the cash payment described in clause (a) by the Average Closing Pricethis Agreement.