Common use of Contingent Amount Clause in Contracts

Contingent Amount. (a) The Purchaser shall pay to ISC the Contingent Amount, determined in accordance with this Article 2.1.5 in the event that the Purchaser achieves or exceeds the following revenue (which shall be determined and accounted for in accordance with the Accounting Standards) targets during the period between the Closing Date and the first anniversary of the Closing Date (the "EARN OUT PERIOD"): (i) if revenue is less than Rupees 21,87,50,000, then no Contingent Amount shall be payable; (ii) if revenue is equal to Rupees 21,87,50,000, the Contingent Amount payable shall be Rupees 5,68,75,000; (iii) if revenue is equal to or exceeds Rupees 46,81,25,000, the Contingent Amount payable shall be Rupees 10,93,75,000; and (iv) if the revenue exceeds Rupees 21,87,50,000 but is less than Rupees 46,81,25,000, the Contingent Amount payable shall be as set out in ANNEXURE O hereto. The payment of the Contingent Amount by the Purchaser to ISC shall be guaranteed by an irrevocable unconditional corporate guarantee (in form and substance acceptable to ISC) provided by eFunds to ISC on or prior to the Closing Date. Notwithstanding anything to the contrary contained in this Agreement or elsewhere, the obligation of the Purchaser to make payment of the Contingent Amount to ISC shall be absolute and the Purchaser shall not be entitled to exercise any right of set off, counterclaim or deduction in relation to the Contingent Amount. (b) The Purchaser undertakes to ensure that the ISC Transferred Business is conducted in good faith during the Earn Out Period with a view to maximize the revenue generated during such period. The Purchaser further undertakes not to commit any act or omission in the conduct of the Business post the Closing Date that may affect the Contingent Amount including by way of postponement or deferral of any revenue and to recognize the same during the Earn Out Period, provided however that the Purchaser shall not be required to undertake any act or omission outside its ordinary and customary policies and procedures to achieve the aforesaid. Any suggestions made in writing by ISC in relation to the conduct of the ISC Transferred Business by the Purchaser during the Earn Out Period shall be considered by the Purchaser in good faith. Purchaser shall consult with ISC on any price reduction it wishes to extend to existing customers of the ISC Transferred Business, which could materially impact the revenues during the Earn Out Period. The amount of any such reduction in revenue during the Earn Out Period shall be calculated by multiplying the difference between the two rates times the number of billable days during the Earn Out Period for each ATM affected. The total amount of the above reductions to revenues during the Earn Out Period shall be added to the revenues actually achieved from the specific customer(s) affected for purposes of computing the total revenues against which the Contingent Payment shall be made. For the purposes of the above adjustment, it is expressly agreed that any price reduction agreed to between ISC and the Bank of India prior to the execution of this Agreement, pursuant to extension or amendment of the agreements dated August 31,2001 and October 28,2003 between ISC and the Bank of India shall be added to the revenues actually received from the Bank of India under aforesaid agreement with the Bank of India provided that any increase in the Bank of India revenue hereunder shall not exceed Rupees 1,09,37,500. The Purchaser shall provide to ISC, monthly statements in relation to revenues achieved by the ISC Transferred Business, the order backlog and such other relevant information as may be reasonably requested by ISC. ISC shall, at its own cost, be entitled to undertake an audit (by an internationally recognized audit firm) of the information provided to it at the end of the Earn Out Period. (c) The Contingent Payment, if and to the extent payable in terms of Article 2.1.5 (a) above, shall be made by the Purchaser to ISC by certified or cashier cheques or wire transfer of immediately available funds within a period of 30 days from the expiry of the Earn Out Period.

Contingent Amount. (a) The Purchaser shall pay Seller will have the right to ISC receive a one-time payment in cash in an amount equal to 25% of the Contingent Amountexcess, if any, of the Net Equity Value as determined in accordance with this Article 2.1.5 in Agreement over $425,000,000 (the event that the Purchaser achieves or exceeds the following revenue (which shall be determined and accounted for “Contingent Amount”), in accordance with the Accounting Standards) targets during subsequent provisions of this Section 3.6. For the period between avoidance of doubt, if the Closing Date and the first anniversary of the Closing Date (the "EARN OUT PERIOD"): (i) if revenue is less than Rupees 21,87,50,000, then no Contingent Amount shall be payable; (ii) if revenue Net Equity Value as determined in accordance with this Agreement is equal to Rupees 21,87,50,000or less than $425,000,000, the Contingent Amount payable shall will be Rupees 5,68,75,000; (iii) if revenue is equal to or exceeds Rupees 46,81,25,000zero, the Contingent Amount payable shall be Rupees 10,93,75,000; and (iv) if the revenue exceeds Rupees 21,87,50,000 but is less than Rupees 46,81,25,000, the Contingent Amount payable shall be as set out in ANNEXURE O hereto. The payment of the Contingent Amount by the Purchaser to ISC shall be guaranteed by an irrevocable unconditional corporate guarantee (in form and substance acceptable to ISC) provided by eFunds to ISC on or prior to the Closing Date. Notwithstanding anything to the contrary contained in this Agreement or elsewhere, the Buyer will have no obligation of the Purchaser to make any payment of the Contingent Amount to ISC shall be absolute and the Purchaser shall not be entitled to exercise any right of set off, counterclaim or deduction in relation to the Contingent AmountSeller under this Section 3.6. (b) The Purchaser undertakes right to ensure that receive the ISC Transferred Business is conducted in good faith Contingent Amount will be deemed exercised (the date on which the first of the following events occurs, the “Exercise Date”): (i) on the date Seller delivers written notice to Buyer of exercise of its right to receive the Contingent Amount (an “Exercise Notice”), which will be irrevocable unless Seller and Buyer otherwise mutually agree, at any time during the Earn Out Period with a view to maximize the revenue generated during such period. The Purchaser further undertakes not to commit any act or omission in the conduct of the Business post period beginning on the Closing Date that may affect and ending on the fifth anniversary of the Closing Date or (ii) on the date on which Buyer or any of its Affiliates enters into a binding agreement for the sale of all (but not less than all) of the equity or all or substantially all of the assets of the Post-Closing Company Group to a bona fide third party so long as such binding agreement is entered into after December 31, 2008 (a “Company Sale Transaction”). Buyer will provide written notice to Seller within five Business Days after a binding agreement for a Company Sale Transaction is executed. For purposes of clarification, (i) the execution of a binding agreement for the sale of all (but not less than all) of the equity or all or substantially all of the assets of Post-Closing Company Group to a bona fide third party on or prior to December 31, 2008 (and the consummation of any such sale) shall not result in a deemed exercise of the right to receive the Contingent Amount including by way but such right shall survive any such event and the covenants set forth in Section 12.1 shall continue to apply, and (ii) if a Company Sale Transaction is terminated prior to consummation, the right to receive the Contingent Amount shall be reinstated and the covenants set forth in Section 12.1 shall apply (it being expressly acknowledged that any actions of postponement Buyer taken in anticipation of consummation of, or deferral of any revenue and to recognize in accordance with, the same during the Earn Out Period, provided however that the Purchaser Company Sale Transaction shall not be required to undertake any act deemed a breach or omission outside its ordinary and customary policies and procedures to achieve the aforesaid. Any suggestions made in writing by ISC in relation to the conduct other violation of the ISC Transferred Business by the Purchaser during the Earn Out Period shall be considered by the Purchaser in good faith. Purchaser shall consult with ISC on any price reduction it wishes to extend to existing customers of the ISC Transferred Business, which could materially impact the revenues during the Earn Out Period. The amount of any such reduction in revenue during the Earn Out Period shall be calculated by multiplying the difference between the two rates times the number of billable days during the Earn Out Period for each ATM affected. The total amount of the above reductions to revenues during the Earn Out Period shall be added to the revenues actually achieved from the specific customer(s) affected for purposes of computing the total revenues against which the Contingent Payment shall be made. For the purposes of the above adjustment, it is expressly agreed that any price reduction agreed to between ISC and the Bank of India prior to the execution of this Agreement, pursuant to extension or amendment of the agreements dated August 31,2001 and October 28,2003 between ISC and the Bank of India shall be added to the revenues actually received from the Bank of India under aforesaid agreement with the Bank of India provided that any increase in the Bank of India revenue hereunder shall not exceed Rupees 1,09,37,500. The Purchaser shall provide to ISC, monthly statements in relation to revenues achieved by the ISC Transferred Business, the order backlog and such other relevant information as may be reasonably requested by ISC. ISC shall, at its own cost, be entitled to undertake an audit (by an internationally recognized audit firm) of the information provided to it at the end of the Earn Out Periodcovenants). (c) If the Exercise Date occurs as the result of the delivery of an Exercise Notice, then promptly following delivery of the Exercise Notice, Seller and Buyer will meet to determine the Net Equity Value. If Seller and Buyer cannot agree on the Net Equity Value within 30 days following the delivery of the Exercise Notice, either Seller or Buyer may demand that the Net Equity Value be determined by the appraisal process set forth below. Within 15 Business Days following a demand by either Seller or Buyer for appraisal, each of Seller and Buyer will appoint one appraiser, each of whom will be an investment banking firm or other appraiser with experience in valuing companies with businesses such as those conducted by Company and its Subsidiaries (an “Appraiser”). If only one Party appoints an Appraiser within such 15 Business Day period, then such Appraiser will make a determination of the Net Equity Value within 45 Business Days, and the Net Equity Value will be deemed equal to the amount determined in such appraisal. Otherwise, each of the two Appraisers appointed by Seller and Buyer will make a determination of the Net Equity Value within 45 Business Days. If the determination of the Net Equity Value in the higher of such appraisals is equal to or less than 110% of the lower of such appraisals, the Net Equity Value will be deemed to be equal to the arithmetic average of such two appraisals. If the higher of such appraisals is greater than 110% of the lower of such appraisals, those two Appraisers will jointly designate a third Appraiser within ten Business Days after completion of the two appraisals, who will make a determination of the Net Equity Value within 30 Business Days. The Contingent PaymentNet Equity Value will be deemed to be equal to the arithmetic average of the two appraisals of the three that are closest to each other or, if the appraisals are equidistant, the arithmetic average of all three appraisals. The determination of the Net Equity Value pursuant to this appraisal process will be binding on the Parties for all purposes, absent manifest error. Each of Seller and Buyer will pay the fees and expenses of the Appraiser appointed by it. If only one Appraiser is appointed or if a third Appraiser is appointed, each of Seller and Buyer will pay one-half of the fees and expenses of such Appraiser. (d) Payment of the Contingent Amount pursuant to an Exercise Notice will be made to Seller within 30 Business Days of the final determination of the Net Equity Value (subject to reasonable extension for obtaining necessary governmental consents, if any). Seller will pay all applicable Taxes, if any, arising as a result of the granting of the right to receive the Contingent Amount or the payment of the Contingent Amount. Payment of the Contingent Amount pursuant to a Company Sale Transaction will be made to Seller no later than the later to occur of (i) 30 Business Days after the final determination of the Net Equity Value (subject to reasonable extension for obtaining necessary governmental consents, if any) and (ii) five Business Days after Buyer’s (or its Affiliates’) actual receipt of the consideration to be received pursuant to the extent payable in terms Company Sale Transaction with respect to any cash consideration received and ten Business Days thereafter with respect to any consideration received other than cash, provided that if Buyer (or its Affiliates) receives consideration on more than one date pursuant to a Company Sale Transaction, then Seller will be entitled to receive its Contingent Amount on a pro rata basis at the time of Article 2.1.5 Buyer’s (aor its Affiliates’) above, shall be made by the Purchaser to ISC by certified or cashier cheques or wire transfer actual receipt of immediately available funds within a period of 30 days from the expiry of the Earn Out Periodsuch consideration.