Common use of Contingent Payment Clause in Contracts

Contingent Payment. (a) If, as of the date of the closing of any Sale of the Company (the "SALE DATE"), the Total Rate of Return (as defined below) realized by Seaview, determined without taking into account any payment or issuance of shares of Company Common Stock made pursuant to the provisions of this Section 2.4(a), shall be less than 25.0% per annum, then on the Payment Date (as defined below) the Company shall pay to Seaview, in addition to all other amounts payable under this Agreement, an amount (the "MAKE-WHOLE AMOUNT") such that, if such amount had been paid to Seaview on the Sale Date and had been taken into account in determining the Total Rate of Return as of such date, would have resulted in a Total Rate of Return of 25.0%. The Make-Whole Amount shall be paid in cash or, at the option of the Company, in shares of Company Common Stock valued at the Market Price (as defined below) thereof as of the Sale Date. (b) For the purposes hereof, the "TOTAL RATE OF RETURN" shall be equal to the internal rate of return per annum, compounded annually, realized or deemed realized by Seaview on its investment in the Company represented by the Preferred Shares, and the shares of Company Common Stock received by the Purchasers upon conversion of the Preferred Shares or otherwise pursuant to the provisions of this Agreement (the "PREFERRED STOCK INVESTMENT"), and shall be computed on the basis of the following: (i) except as otherwise provided in Section 2.4(b)(ii), the computation of the Total Rate of Return shall be made for the period from and including the Closing Date to and including the Sale Date; (ii) the following assumptions shall be made in computing the Total Rate of Return: (A) in the event that on the Sale Date Seaview shall hold any shares of Company Common Stock issued upon conversion of the Preferred Shares, the computation shall be made based on the assumption that all such Preferred Shares were exercised on the Sale Date and all shares of Company Common Stock received by Seaview upon such conversion and any other shares of Company Common Stock previously received by Seaview upon the conversion of Preferred Shares were sold by it on the Sale Date for a price per share in cash equal to the Market Price as of such date (whether or not such Preferred Shares are actually converted or such shares of Company Common Stock are actually sold on such date); and (B) solely for purposes of computing the Total Rate of Return after giving effect to any Make-Whole Amount payable pursuant to Section 2.4(a), any cash amount paid pursuant thereto shall be deemed to have been paid on the Sale Date, and any shares of Company Common Stock issued pursuant thereto shall be deemed to have been issued on the Sale Date and to have been sold by Seaview on the Sale Date for a price per share in cash equal to the Market Price as of such date; and (iii) the computation shall take into account (A) all cash payments made by Seaview in respect of its Preferred Stock Investment during the applicable period referred to in paragraph (i) above, including, without limitation, the payment of the purchase price of $5,000,000 principal of Notes plus accrued interest for the Preferred Shares issued on the Closing Date, and all out-of-pocket costs and expenses paid by Seaview in connection with the Preferred Stock Investment for which the Company is responsible but which have not been reimbursed to Seaview; (B) all dividends received by Seaview in respect of the Preferred Shares during the period from and including the Closing Date to and including the Sale Date, and (C) any payment received (or assumed to have been received pursuant to the provisions of paragraph (ii) above) in respect of any sale of Preferred Shares or shares of Company Common Stock made on or prior to the Sale Date (or assumed to have been made on the Maturity Date pursuant to paragraph (ii) above). (c) Within 30 days after the Sale Date, Seaview shall give written notice to the Company (the "MAKE-WHOLE NOTICE") with respect to the amount of the Make-Whole Amount (if any) to be paid to Seaview, which notice shall contain a calculation thereof in reasonable detail, including the Market Price per share of the Company Common Stock determined by Seaview for such purpose. If the Company disagrees with the amount of the Market Price specified in the Make-Whole Notice or disagrees for any other reason with the calculation of the Make-Whole Amount therein stated, it shall so notify Seaview in writing within five (5) Business Days after receipt of the Make-Whole Notice, stating the bases for its objection thereto (the "OBJECTION NOTICE"). If a Notice of Objection is not received by Seaview within period of five (5) Business Days, the Make-Whole Amount as determined by Seaview in the Make-Whole Notice shall be final and binding for all purposes of this Section 2.4. If a Notice of Objection is received by Seaview on a timely basis and the parties are unable to reach agreement with respect to the matters set forth therein within a period of 15 days after such receipt, the Make-Whole Amount (including the relevant Market Price) shall be determined in good faith by an independent investment banking firm selected jointly by the Company and Seaview or, if that selection cannot be made within 15 days, by an independent investment banking firm selected by the American Arbitration Association in accordance with its rules. The fees and expenses of such independent investment banking firm shall be borne equally by the Company and Seaview. For the purposes hereof, the determination of the "fair market value" of any shares of Company Common Stock shall be based upon the market value of the Company determined on a going concern basis, assuming that all of the outstanding shares of Company Common Stock are being sold as between a willing buyer and a willing seller in an arm's length transaction for cash payable in full on completion, and taking into account all prior or preferential rights and conversion rights of holders of Company Preferred Stock at the time outstanding and any shares of any class which may be issuable under any then outstanding options, warrants or other rights to subscribe for, or securities convertible into or exchangeable for, shares of Company Common Stock, and taking into account all other relevant factors determinative of value, PROVIDED that no discount shall be imposed by reason of such shares of Company Common Stock constituting a minority ownership interest or by reason of the illiquidity of such shares or any contractual or other restrictions on the sale or transfer thereof. The determination of such investment banking firm with respect to the matters submitted to it hereunder shall be final and binding on all parties hereto. (d) The Company shall pay the applicable Make-Whole Amount (if any) to Seaview within ten (10) Business Days after receipt of the Make-Whole Notice, or, if a timely Notice of Objection shall be received by Seaview as provided in paragraph (c) above, within ten (10) Business Days after all disputes with respect to the matters set forth therein shall be finally resolved in accordance with the provisions hereof (the "PAYMENT DATE"), PROVIDED that if both Preferred Shares and Notes originally issued to TICC under the Note Purchase Agreement are outstanding, the Notes together with accrued unpaid interest and other amounts due thereon shall be paid in full before any payment is made to the Purchasers on account of the Make-Whole Amount.

Contingent Payment. (a) If, as The Contingent Payment shall be due upon the occurrence of the date following events and shall be distributed to the Seller in the following amounts (if and only to the extent that such events shall occur): (i) at such time on or after March 31, 1999 as Cumulative 1999 EBITDA shall be an amount equal to or greater than [******], the Seller shall be entitled to receive [******] of the closing of any Sale Contingent Payment; (ii) at such time on or after June 30, 1999 as Cumulative 1999 EBITDA shall be an amount equal to or greater than [******], Seller shall be entitled to receive a portion of the Company (the "SALE DATE"), the Total Rate of Return (as defined below) realized by Seaview, determined without taking into account Contingent Payment equal to [******] less any payment or issuance of shares of Company Common Stock made amount earned and paid pursuant to the provisions of this Section 2.4(a)1.8(a)(i) above; and (iii) at such time on or after September 30, 1999 as Cumulative 1999 EBITDA shall be less than 25.0% per annum, then on the Payment Date (as defined below) the Company shall pay to Seaview, in addition to all other amounts payable under this Agreement, an amount (the "MAKE-WHOLE AMOUNT") such thatequal to or greater than [******], if such amount had been paid to Seaview on the Sale Date and had been taken into account in determining the Total Rate of Return as of such date, would have resulted in a Total Rate of Return of 25.0%. The Make-Whole Amount Seller shall be paid in cash or, at the option entitled to receive a portion of the Company, in shares of Company Common Stock valued at the Market Price Contingent Payment equal to [******] less any amounts earned and paid pursuant to Sections 1.8(a)(i) and (as defined belowii) thereof as of the Sale Dateabove. (b) For the purposes hereof, the "TOTAL RATE OF RETURNCumulative 1999 EBITDA" shall be equal mean the cumulative earnings of Buyer attributable to the internal rate of return per annumBusiness before deduction for interest, compounded annuallytaxes, realized or deemed realized by Seaview on its investment depreciation and amortization, as set forth in Buyer's monthly unaudited consolidating financial statements for the Company represented by calendar year 1999, prepared in accordance with GAAP, but, notwithstanding the Preferred Sharesforegoing, and the shares of Company Common Stock received by the Purchasers upon conversion of the Preferred Shares or otherwise pursuant to the provisions of this Agreement (the "PREFERRED STOCK INVESTMENT"), and shall be computed on the basis of the following: specifically excluding from any such earnings (i) except as otherwise provided in Section 2.4(b)(ii), the computation of the Total Rate of Return shall be made for the period from and including the Closing Date to and including the Sale Date; (ii) the following assumptions shall be made in computing the Total Rate of Return: (A) in the event that on the Sale Date Seaview shall hold any shares of Company Common Stock issued upon conversion of the Preferred Shares, the computation shall be made based on the assumption that all such Preferred Shares were exercised on the Sale Date and all shares of Company Common Stock amounts received by Seaview upon such conversion and any other shares of Company Common Stock previously received by Seaview upon the conversion of Preferred Shares were sold by it on the Sale Date for a price per share in cash equal to the Market Price as of such date (whether or not such Preferred Shares are actually converted or such shares of Company Common Stock are actually sold on such date); and (B) solely for purposes of computing the Total Rate of Return after giving effect to any Make-Whole Amount payable pursuant to Section 2.4(a), any cash amount paid pursuant thereto shall be deemed to have been paid on the Sale Date, and any shares of Company Common Stock issued pursuant thereto shall be deemed to have been issued on the Sale Date and to have been sold by Seaview on the Sale Date for a price per share in cash equal to the Market Price as of such date; and (iii) the computation shall take into account (A) all cash payments made by Seaview in respect of its Preferred Stock Investment during the applicable period referred to in paragraph (i) above, including, without limitation, the payment of the purchase price of $5,000,000 principal of Notes plus accrued interest for the Preferred Shares issued on the Closing Date, and all out-of-pocket costs and expenses paid by Seaview in connection with the Preferred Stock Investment for which the Company is responsible but which have not been reimbursed to Seaview; (B) all dividends received by Seaview in respect of the Preferred Shares during the period from and including the Closing Date to and including the Sale Date, and (C) any payment received (or assumed to have been received pursuant to the provisions of paragraph (ii) above) receivable in respect of any sale accounts receivable, claims or other rights constituting any portion of Preferred Shares the Transferred Assets or shares arising out of Company Common Stock made on or prior to the Sale Date (or assumed to have been made on the Maturity Date pursuant to paragraph in connection with this Agreement, (ii) aboveany charge to earnings in respect of any allocated portion of the corporate overhead of Buyer's affiliates, (iii) charges to earnings in respect of payments to AT&T actually made under the AT&T Agreement to the extent in excess of the amounts which would have been payable under the New AT&T Agreement and (iv) charges to earnings in respect of payments of base salary to Davi▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ a rate higher than [******] per year (collectively, the "1999 Exclusions"). (c) Within 30 days after the Sale Date, Seaview shall give written notice to the Company (the "MAKE-WHOLE NOTICE") with respect to the amount of the Make-Whole Amount (if any) to be paid to Seaview, which notice shall contain a calculation thereof in reasonable detail, including the Market Price per share of the Company Common Stock determined by Seaview for such purpose. If the Company disagrees with the amount of the Market Price specified in the Make-Whole Notice or disagrees for any other reason with the calculation of the Make-Whole Amount therein stated, it shall so notify Seaview in writing within five (5) Business Days after receipt of the Make-Whole Notice, stating the bases for its objection thereto (the "OBJECTION NOTICE"). If a Notice of Objection is not received by Seaview within period of five (5) Business Days, the Make-Whole Amount as determined by Seaview in the Make-Whole Notice shall be final and binding for all purposes of this Section 2.4. If a Notice of Objection is received by Seaview on a timely basis and the parties are unable to reach agreement with respect to the matters set forth therein within a period of 15 days after such receipt, the Make-Whole Amount (including the relevant Market Price) shall be determined in good faith by an independent investment banking firm selected jointly by the Company and Seaview or, if that selection cannot be made within 15 days, by an independent investment banking firm selected by the American Arbitration Association in accordance with its rules. The fees and expenses of such independent investment banking firm shall be borne equally by the Company and Seaview. For the purposes hereof, the determination of the "fair market value" of any shares of Company Common Stock shall be based upon the market value of the Company determined on a going concern basis, assuming that all of the outstanding shares of Company Common Stock are being sold as between a willing buyer and a willing seller in an arm's length transaction for cash payable in full on completion, and taking into account all prior or preferential rights and conversion rights of holders of Company Preferred Stock at the time outstanding and any shares of any class which may be issuable under any then outstanding options, warrants or other rights to subscribe for, or securities convertible into or exchangeable for, shares of Company Common Stock, and taking into account all other relevant factors determinative of value, PROVIDED that no discount shall be imposed by reason of such shares of Company Common Stock constituting a minority ownership interest or by reason of the illiquidity of such shares or any contractual or other restrictions on the sale or transfer thereof. The determination of such investment banking firm with respect to the matters submitted to it hereunder shall be final and binding on all parties hereto. (d) The Company shall pay the applicable Make-Whole Amount (if any) to Seaview within ten (10) Business Days after receipt of the Make-Whole Notice, or, if a timely Notice of Objection shall be received by Seaview as provided in paragraph (c) above, within ten (10) Business Days after all disputes with respect to the matters set forth therein shall be finally resolved in accordance with the provisions hereof (the "PAYMENT DATE"), PROVIDED that if both Preferred Shares and Notes originally issued to TICC under the Note Purchase Agreement are outstanding, the Notes together with accrued unpaid interest and other amounts due thereon shall be paid in full before any payment is made to the Purchasers on account of the Make-Whole Amount.

Contingent Payment. (a) IfSubject to the provisions of Section 16.13(f), if, as of the date of the closing of any Sale of the Company (the "SALE DATE")Maturity Date, the Total Rate of Return (as defined below) realized by Seaviewwith respect to any Purchaser, determined without taking into account any payment or issuance of shares of Company Common Stock made pursuant to the provisions of this Section 2.4(a16.13(a), shall be less than 25.015.0% per annum, then on the Payment Date (as defined below) the Company shall pay to Seaviewsuch Purchaser, in addition to all other amounts payable under this Agreement, the Notes and the other Note Documents, an amount (the "MAKEeach a “Make-WHOLE AMOUNT"Whole Amount”) such that, if such amount had been paid to Seaview such Purchaser on the Sale Maturity Date and had been taken into account in determining the Total Rate of Return as of such date, would have resulted in a Total Rate of Return of 25.015.0%; provided that in the event the Company elects to pay the Make-Whole Amount in the form of shares of Company Common Stock, the aggregate number of such shares issued by the Company to all Purchasers pursuant to this Section shall not in any event exceed 1,167,000 (as adjusted to take account of any stock dividends, stock splits or similar events affecting the Company Common Stock occurring after the date hereof), and, if by reason of such limitation the aggregate number of such shares to be distributed to the Purchasers shall be less than the aggregate number that would have been so distributed in the absence of such limitation, then such shares shall be distributed to the Purchasers pro rata according to the respective Make-Whole Amounts that such Purchasers are entitled to receive pursuant to this Section. The Each Make-Whole Amount shall be paid in cash or, at the option of the Company, in shares of Company Common Stock valued at the Market Price (as defined below) thereof as of the Sale Maturity Date. (b) For the purposes hereof, the "TOTAL RATE OF RETURN" “Total Rate of Return” shall be equal to the internal rate of return per annum, compounded annually, annum realized or deemed realized by Seaview the Purchasers (taken together and treated as a single investor) on its their investment in the Company represented by the Preferred Shares, the Warrants and the Notes issued by the Company pursuant to this Agreement and the Stock Purchase Agreement and the shares of Company Common Stock received by the Purchasers upon conversion exercise of the Preferred Shares Warrants or otherwise pursuant to the provisions of this Agreement (the "PREFERRED STOCK INVESTMENT"“Combined Investment”), and shall be computed on the basis of the following: (i) except as otherwise provided in Section 2.4(b)(ii), the computation of the Total Rate of Return shall be made for the period from and including the Closing Date to and including the Sale Date; (ii) the following assumptions shall be made in computing the Total Rate of Return: (A) in the event that on the Sale Date Seaview shall hold any shares of Company Common Stock issued upon conversion of the Preferred Shares, the computation shall be made based on the assumption that all such Preferred Shares were exercised on the Sale Date and all shares of Company Common Stock received by Seaview upon such conversion and any other shares of Company Common Stock previously received by Seaview upon the conversion of Preferred Shares were sold by it on the Sale Date for a price per share in cash equal to the Market Price as of such date (whether or not such Preferred Shares are actually converted or such shares of Company Common Stock are actually sold on such date); and (B) solely for purposes of computing the Total Rate of Return after giving effect to any Make-Whole Amount payable pursuant to Section 2.4(a), any cash amount paid pursuant thereto shall be deemed to have been paid on the Sale Date, and any shares of Company Common Stock issued pursuant thereto shall be deemed to have been issued on the Sale Date and to have been sold by Seaview on the Sale Date for a price per share in cash equal to the Market Price as of such date; and (iii) the computation shall take into account (A) all cash payments made by Seaview in respect of its Preferred Stock Investment during the applicable period referred to in paragraph (i) above, including, without limitation, the payment of the purchase price of $5,000,000 principal of Notes plus accrued interest for the Preferred Shares issued on the Closing Date, and all out-of-pocket costs and expenses paid by Seaview in connection with the Preferred Stock Investment for which the Company is responsible but which have not been reimbursed to Seaview; (B) all dividends received by Seaview in respect of the Preferred Shares during the period from and including the Closing Date to and including the Sale Date, and (C) any payment received (or assumed to have been received pursuant to the provisions of paragraph (ii) above) in respect of any sale of Preferred Shares or shares of Company Common Stock made on or prior to the Sale Date (or assumed to have been made on the Maturity Date pursuant to paragraph (ii) above). (c) Within 30 days after the Sale Date, Seaview shall give written notice to the Company (the "MAKE-WHOLE NOTICE") with respect to the amount of the Make-Whole Amount (if any) to be paid to Seaview, which notice shall contain a calculation thereof in reasonable detail, including the Market Price per share of the Company Common Stock determined by Seaview for such purpose. If the Company disagrees with the amount of the Market Price specified in the Make-Whole Notice or disagrees for any other reason with the calculation of the Make-Whole Amount therein stated, it shall so notify Seaview in writing within five (5) Business Days after receipt of the Make-Whole Notice, stating the bases for its objection thereto (the "OBJECTION NOTICE"). If a Notice of Objection is not received by Seaview within period of five (5) Business Days, the Make-Whole Amount as determined by Seaview in the Make-Whole Notice shall be final and binding for all purposes of this Section 2.4. If a Notice of Objection is received by Seaview on a timely basis and the parties are unable to reach agreement with respect to the matters set forth therein within a period of 15 days after such receipt, the Make-Whole Amount (including the relevant Market Price) shall be determined in good faith by an independent investment banking firm selected jointly by the Company and Seaview or, if that selection cannot be made within 15 days, by an independent investment banking firm selected by the American Arbitration Association in accordance with its rules. The fees and expenses of such independent investment banking firm shall be borne equally by the Company and Seaview. For the purposes hereof, the determination of the "fair market value" of any shares of Company Common Stock shall be based upon the market value of the Company determined on a going concern basis, assuming that all of the outstanding shares of Company Common Stock are being sold as between a willing buyer and a willing seller in an arm's length transaction for cash payable in full on completion, and taking into account all prior or preferential rights and conversion rights of holders of Company Preferred Stock at the time outstanding and any shares of any class which may be issuable under any then outstanding options, warrants or other rights to subscribe for, or securities convertible into or exchangeable for, shares of Company Common Stock, and taking into account all other relevant factors determinative of value, PROVIDED that no discount shall be imposed by reason of such shares of Company Common Stock constituting a minority ownership interest or by reason of the illiquidity of such shares or any contractual or other restrictions on the sale or transfer thereof. The determination of such investment banking firm with respect to the matters submitted to it hereunder shall be final and binding on all parties hereto. (d) The Company shall pay the applicable Make-Whole Amount (if any) to Seaview within ten (10) Business Days after receipt of the Make-Whole Notice, or, if a timely Notice of Objection shall be received by Seaview as provided in paragraph (c) above, within ten (10) Business Days after all disputes with respect to the matters set forth therein shall be finally resolved in accordance with the provisions hereof (the "PAYMENT DATE"), PROVIDED that if both Preferred Shares and Notes originally issued to TICC under the Note Purchase Agreement are outstanding, the Notes together with accrued unpaid interest and other amounts due thereon shall be paid in full before any payment is made to the Purchasers on account of the Make-Whole Amount.

Contingent Payment. (a) IfIf at any time on or before the third anniversary of the Closing Date (the “Three Year Period”), (i) the Company or any Shareholder shall Transfer, or enter into an agreement with respect to the Transfer, of any Common Stock Equivalents, at a Price Per Share greater than the Base Price, or (ii) the Company shall sell all or substantially all of the assets of the Company at a value that implies a Price Per Share greater than the Base Price, the Company shall pay to Seller, concurrently with the closing of such transaction, an amount in cash in immediately available funds equal to the product of (x) the excess, if any, of the Price Per Share over the Base Price, multiplied by (y) the number of shares of Common Stock underlying the Common Stock Equivalents Transferred in such transaction, multiplied further by (z) the Pro Rata Percentage. (b) In the case of any Transfer of Common Stock Equivalents of the Company in exchange for Common Stock Equivalents of any other Person, the provisions of Section 1.04(a) shall apply to both the initial Transfer and to any subsequent Transfer by a Shareholder during the Three Year Period of the Common Stock Equivalents of such other Person that are received in the initial Transfer; provided, that the Price Per Share received by Seller with respect to any subsequent Transfer shall be reduced by the Price Per Share previously received by it in connection with each prior Transfer. (c) The Consideration shall be determined as of the date of the closing execution of any Sale of the Company a definitive agreement in connection with such Transfer (the "SALE DATE"“Transfer Signing Date”), the Total Rate of Return (as defined below) realized by Seaview, determined without taking into account any payment or issuance of shares of Company Common Stock made pursuant to the provisions of this Section 2.4(a), shall be less than 25.0% per annum, then on the Payment Date (as defined below) the Company shall pay to Seaview, in addition to all other amounts payable under this Agreement, an amount (the "MAKE-WHOLE AMOUNT") such that, if such amount had been paid to Seaview on the Sale Date and had been taken into account in determining the Total Rate of Return as of such date, would have resulted in a Total Rate of Return of 25.0%. The Make-Whole Amount shall be paid in cash or, at the option of the Company, in shares of Company Common Stock valued at the Market Price (as defined below) thereof as of the Sale Date. (b) For the purposes hereof, the "TOTAL RATE OF RETURN" shall be equal to the internal rate of return per annum, compounded annually, realized or deemed realized by Seaview on its investment in the Company represented by the Preferred Shares, and the shares of Company Common Stock received by the Purchasers upon conversion of the Preferred Shares or otherwise pursuant to the provisions of this Agreement (the "PREFERRED STOCK INVESTMENT"), and shall be computed on the basis of the followingmanner set forth below: (i) except as otherwise provided in Section 2.4(b)(ii)to the extent the Consideration consists of cash or cash equivalents, the computation value of the Total Rate of Return Consideration shall be made for deemed to be the period from and including amount of cash or the Closing Date to and including value of the Sale Datecash equivalents so received; (ii) to the following assumptions shall be made in computing extent the Total Rate Consideration consists of Return: (A) in the event that securities listed or admitted to trading on the Sale Date Seaview shall hold New York Stock Exchange, Nasdaq Global Market, or any shares of Company Common Stock issued upon conversion other principal national securities exchange (“Publicly Traded Securities”), the value of the Preferred Shares, the computation shall be made based on the assumption that all such Preferred Shares were exercised on the Sale Date and all shares of Company Common Stock received by Seaview upon such conversion and any other shares of Company Common Stock previously received by Seaview upon the conversion of Preferred Shares were sold by it on the Sale Date for a price per share in cash equal to the Market Price as of such date (whether or not such Preferred Shares are actually converted or such shares of Company Common Stock are actually sold on such date); and (B) solely for purposes of computing the Total Rate of Return after giving effect to any Make-Whole Amount payable pursuant to Section 2.4(a), any cash amount paid pursuant thereto Consideration shall be deemed to have been paid on be the Sale Date, and any shares average of Company Common Stock issued pursuant thereto shall be deemed to have been issued on the Sale Date and to have been sold by Seaview on the Sale Date for a price daily closing prices per share in cash equal to the Market Price as of such date; andsecurity for the thirty (30) consecutive trading days immediately prior to, but not including, the Transfer Signing Date; (iii) the computation shall take into account (A) all cash payments made by Seaview in respect of its Preferred Stock Investment during the applicable period referred to in paragraph (i) above, including, without limitation, the payment of the purchase price of $5,000,000 principal of Notes plus accrued interest for the Preferred Shares issued on the Closing Date, and all out-of-pocket costs and expenses paid by Seaview in connection with the Preferred Stock Investment for which the Company is responsible but which have not been reimbursed to Seaview; (B) all dividends received by Seaview in respect of the Preferred Shares during the period from and including the Closing Date to and including the Sale Date, and (C) any payment received (or assumed to have been received pursuant to the provisions extent the Consideration consists of paragraph (ii) above) in respect of any sale of Preferred Shares property other than cash, cash equivalents or shares of Company Common Stock made on or Publicly Traded Securities, prior to the Sale Date anticipated closing date of the Transfer (or assumed which may include any date prior to have been made the anticipated Transfer Signing Date), the Company shall prepare and deliver to Seller a statement reflecting a good faith estimate of the value of the property to be received in the Transfer (the “Estimated Property Value Statement”) (the amount of the Estimated Property Value set forth on the Maturity Date pursuant to paragraph such statement, “Estimated Property Value”) and any additional information relating thereto reasonably requested by Seller. Within fifteen (ii15) above). (c) Within 30 days after the Sale Datereceipt by Seller of the Estimated Property Value Statement, Seaview Seller shall give deliver, or cause to be delivered, a written notice to the Company (the "MAKE-WHOLE NOTICE") of any dispute Seller has with respect to the Company’s computation of the Estimated Property Value (the “Seller’s Objection”), specifying the nature and amount of the Make-Whole Amount (if any) such dispute. If no such Seller’s Objection is delivered to be paid to Seaview, which notice shall contain a calculation thereof in reasonable detail, including the Market Price per share of the Company Common Stock determined by Seaview for such purpose. If within the Company disagrees aforementioned time period, Seller shall be deemed to agree with the amount of the Market Price specified in the Make-Whole Notice or disagrees for any other reason with the calculation of the Make-Whole Amount therein stated, it shall so notify Seaview in writing within five (5) Business Days after receipt of the Make-Whole Notice, stating the bases for its objection thereto (the "OBJECTION NOTICE")set forth therein. If a Notice of Seller’s Objection is not received by Seaview within period of five (5) Business Daysproperly delivered, the Make-Whole Amount as determined Company and Seller shall negotiate in good faith to resolve such dispute. If Seller and the Company, notwithstanding such good faith effort, fail to resolve such dispute within ten (10) days after delivery of the Seller’s Objection, then by Seaview in the Make-Whole Notice end of such ten (10) day period, Seller and the Company shall each engage an investment banking firm of national reputation and the value of such property shall be final and binding for all purposes made by agreement of this Section 2.4the two investment banking firms. If a Notice of Objection is received by Seaview on a timely basis and the parties such investment banking firms are unable to reach agreement with respect to agree within fifteen (15) days following their appointment on the matters set forth therein within a period value of 15 days after such receiptproperty, the Make-Whole Amount (including the relevant Market Price) its value shall be determined in good faith by an independent investment banking firm selected jointly by the Company and Seaview or, if that selection cannot be made within 15 days, by an independent a third investment banking firm selected by the American Arbitration Association in accordance with its rulesfirst two investment banking firms, and the determination of such third investment banking firm shall be final and binding upon the Company and Seller. The fees Company and expenses Seller shall use their commercially reasonable efforts to cause the third investment banking firm to render its decision within ten (10) days following the submission thereof. The costs of such independent third investment banking firm shall be borne equally by the Company and Seaview. For the purposes hereof, the determination of the "fair market value" of any shares of Company Common Stock shall be based upon the market value of the Company determined on a going concern basis, assuming that all of the outstanding shares of Company Common Stock are being sold as between a willing buyer and a willing seller in an arm's length transaction for cash payable in full on completion, and taking into account all prior or preferential rights and conversion rights of holders of Company Preferred Stock at the time outstanding and any shares of any class which may be issuable under any then outstanding options, warrants or other rights to subscribe for, or securities convertible into or exchangeable for, shares of Company Common Stock, and taking into account all other relevant factors determinative of value, PROVIDED that no discount shall be imposed by reason of such shares of Company Common Stock constituting a minority ownership interest or by reason of the illiquidity of such shares or any contractual or other restrictions on the sale or transfer thereof. The determination of such investment banking firm with respect to the matters submitted to it hereunder shall be final and binding on all parties heretoSeller. (d) The Notwithstanding the foregoing, the provision of this Section 1.04 shall not apply to (i) Transfers between or among Family, Shareholders and their Affiliates (as defined in Section 5.13 below); (ii) issuances by the Company shall pay the applicable Make-Whole Amount of Common Stock Equivalents (if anyA) to Seaview within ten (10) Business Days after receipt executive officers of the Make-Whole Notice, or, if a timely Notice of Objection shall be received by Seaview as provided Company in paragraph (c) above, within ten (10) Business Days after all disputes connection with respect to the matters set forth therein shall be finally resolved in accordance his or her employment with the provisions hereof Company or its Affiliates; or (B) in connection with any bona fide debt financing transaction by the "PAYMENT DATE")Company, PROVIDED provided that if both Preferred Shares and Notes originally the aggregate number of Common Stock Equivalents issued pursuant to TICC under the Note Purchase Agreement are outstanding, the Notes together with accrued unpaid interest and other amounts due thereon clause (ii) shall be paid in full before any payment is made to the Purchasers on account not exceed 10% of the Make-Whole AmountCompany’s outstanding Common Stock Equivalents; or (iii) the sale of American Insulated Wire Corporation.