Common use of Payment of Additional Consideration Clause in Contracts

Payment of Additional Consideration. Any payments owed by the Purchaser pursuant to this Section 2.5 for a particular Measuring Period shall be made no later than ten (10) Business Days after the earliest of (i) the expiration of the Dispute Period if the Purchaser has not received a Dispute Notice concerning the Earn-Out Report within that period, (ii) the resolution by the Purchaser and the Sellers of all differences regarding the Earn-Out Report, (iii) the receipt of the Arbitrating Accountant’s determination as set forth in Section 2.5(d); provided, however, that (1) with respect to payments for Measuring Periods following the achievement of an Additional Consideration Target in a prior Measuring Period, the 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 payment for the Third Year Period. The Purchaser shall not be obligated to issue fractional shares of Common Stock to any Seller or 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 Purchase Price shall instead the next whole number of Shares to which they would otherwise be entitled under this Section 2.5(f). (i) 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 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 amount of the Additional Consideration to the Designated Employees in accordance with their applicable Designated Employee Pro Rata Share, and (z) the applicable Designated Employee Percentage of such Additional Consideration amounts shall not be treated as Purchase Price; provided, however, that any Ineligible Employee Shares will be apportioned among and issued to the Sellers in accordance with Exhibit A.

Payment of Additional Consideration. Any payments owed by the Purchaser pursuant to this Section 2.5 for a particular Measuring Period (i) Each Earnout Payment shall be made no later than 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 earliest earlier of (iA) the receipt by the Delivering Party of the Receiving Party's Earnout Approval Notice, (B) the expiration of the Earnout Dispute Period if the Purchaser Delivering Party has not received a the Receiving Party's Earnout Approval Notice or the Receiving Party's Earnout Dispute Notice concerning the Earn-Out Report within that such period, (iiC) the resolution by the Purchaser and the Sellers parties of all differences regarding the Earncalculations of Pre-Out Report, Tax Net Income for the relevant Earnout Period within the Earnout Resolution Period and (iiiD) the receipt of the Arbitrating Accountant’s determination 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 Section 2.5(d)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, howeverthat such Seller executes and delivers to Buyer an investment representation letter, that (1) with respect to payments for Measuring Periods following the achievement of an Additional Consideration Target in a prior Measuring Period, the 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 payment for the Third Year Period. The Purchaser shall not be obligated to issue fractional shares of Common Stock to any Seller or 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 Purchase Price shall instead the next whole number of Shares to which they would otherwise be entitled under this Section 2.5(f). (i) 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 contrary substantially in the foregoing, prior to the payment form 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 amount of the Additional Consideration to the Designated Employees in accordance with their applicable Designated Employee Pro Rata Share, and (z) the applicable Designated Employee Percentage of such Additional Consideration amounts shall not be treated as Purchase Price; provided, however, that any Ineligible Employee Shares will be apportioned among and issued to the Sellers in accordance with Exhibit A.Annex D hereto.

Payment of Additional Consideration. Any payments owed by The Acquiror shall deposit with the Purchaser Exchange Agent cash or immediately available funds in the amount of the Additional Consideration payable hereunder (less the amount of the Interim CEO Payment payable pursuant to this Section 2.5 for a particular Measuring Period shall be made no later than 2.8 and less any amounts in dispute in accordance with Section 2.3(e)) within ten (10) Business Days after following approval by the earliest Board of (i) the expiration Directors of the Dispute Period if Acquiror (the Purchaser has not received a Dispute Notice concerning “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 Report within 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 periodif the PV Commercial Revenue and Commercial Gross Margin targets set forth in Section 2.3(a) have been achieved prior to the regularly scheduled meeting of the 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 (iiother than any amounts that are subject to dispute). The Acquiror shall furnish to the Shareholder Representative at least five (5) days advance written notice of the resolution by Acquiror Board meeting, together with all materials provided to the Purchaser Acquiror Board relating to the calculation and approval of the Sellers Additional Consideration as well as any recommendations contained therein. The standard for the Acquiror Board approval of all differences regarding the Additional Consideration is whether the calculations of PV Commercial Revenue and Commercial Gross Margin set forth in the Earn-Out Report, (iii) Statement were determined in accordance with the receipt terms of this Agreement. If the Acquiror Board approves any modification to the calculation of the Arbitrating Accountant’s determination as Additional Consideration set forth in Section 2.5(d); providedthe Earn-Out Statement, howeverthe Acquiror shall notify the Shareholder Representative of such modification, that (1) with respect to payments for Measuring Periods following specifying the achievement basis therefor and the computation of an Additional Consideration Target in a prior Measuring Period, so approved by the Acquiror Board. Any late 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 payment for the Third Year Period. The Purchaser shall not be obligated to issue fractional shares of Common Stock to any Seller or 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 Purchase Price shall instead the next whole number of Shares to which they would otherwise be entitled under this Section 2.5(f). (i) The Purchaser shall issue any Additional Consideration consisting of shares of Common Stock, by issuance of shall bear interest at the appropriate number of shares of Common Stock then senior bank rate available to each Seller; in accordance with each Seller’s Pro Rata Share as set forth on Exhibit A. (ii) the Acquiror plus 200 basis points. Notwithstanding anything to the contrary in the foregoingherein, prior if there is a dispute with respect to the payment amount of any Additional Consideration to payable hereunder, the Sellers pursuant to this Section 2.5, (x) Acquiror shall be reduced by promptly deposit with 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 amount Exchange Agent any undisputed portion of the Additional Consideration to as otherwise required by this Section 2.3(f); provided that if the Designated Employees Acquiror has a reasonable basis for claiming fraud or intentional material misrepresentation in accordance the conduct of the business of the Surviving Company during the Earn-Out Period, the Acquiror shall provide the Shareholder Representative with their applicable Designated Employee Pro Rata Sharenotice thereof, specifying in reasonable details the basis for such claim, and (z) shall be entitled to withhold the applicable Designated Employee Percentage entire amount of such Additional Consideration pending determination of the amounts shall not be treated as Purchase Price; provided, however, that any Ineligible Employee Shares will be apportioned among and issued recoverable by the Acquiror pursuant to the Sellers in accordance with Exhibit A.Article IX.