* Pursuant to5 TH C IRCUIT R ULE 47.5, thecourt hasdetermined that thisopinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IRCUIT R ULE 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 20, 2007 Charles R. Fulbruge III Clerk 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10894

THE PARKER GROUP INC Plaintiff-Appellant v. MICHAEL P BRYAN Defendant-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:05-CV-230

Before DAVIS, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM: * Thisappeal arises from a dispute between Plaintiff-Appellant The Parker Group, Inc. (“Parker Group”) and Defendant-Appellee Michael P. Bryan (“Bryan”) over the terms of a contract (the “Agreement”) that set forth the conditions ofParker Group’s purchase ofall the outstanding shares ofAmerican Administrative Group, Inc. (“AAG”). At the time of the purchase, Bryan, who held a majority ofAAG’s shares, had negotiated for AAG to purchase Gallagher Benefit Administrators, Inc. (“GBA”). As part of the Agreement, Parker GroupNo. 06-10894

1 EBITDA stands for Earnings Before Interest, Taxes, Depreciation, and Amortization. 2 agreed to pay Bryan additional consideration should Parker Group successfully complete the purchase of GBA under the terms negotiated by Bryan. Parker Group ultimately purchased GBA and, therefore, owed the additional amount to Bryan. Pursuant to the Agreement, Bryan was to receive Seller Note B, a promissory note, for the amount owed to him by Parker Group. The amount of Seller Note B was to be determined, in part, by using GBA’s Normalized EBITDA 1, which was to be calculated from GBA’s audited financial statements. At the time the parties negotiated the Agreement, GBA’s audited financial statements were not available, so the Agreement called for Seller Note B to be issued based on the parties’ estimated numbersand automatically adjusted once the audited financial statements became available. Seller Note B was issued approximately two months after the parties signed the Agreement, and Parker Group calculated GBA’s Normalized EBITDA at an amount that resulted in Seller Note B being issued for over $7 million. Parker Group now seeks to reduce the amount ofSeller Note B by approximately $6 million based on GBA’s audited financial statements. However, at the time Seller Note B was issued, Parker Group was in possession ofGBA’saudited financial statementsand gave indications that it based the $7 million amount on those statements. Parker Group filed a declaratoryjudgment action against Bryan, seeking a declaration that the amount ofSeller Note B should be reduced. The parties filed cross-motions for partial summary judgment, and the district court ruled in favor of Bryan and issued a judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Parker Group appealed to this court. We have now reviewed the record and examined the parties’ arguments, and we agree with Bryan’s position. Although the Agreement contemplated anNo. 06-10894

3 adjustment toSeller Note B onceGBA’s Normalized EBI TDA could be calculated from GBA’saudited financial statements, there is nothing in the Agreement that prohibits the partiesfrom making a final determination as toGBA’s Normalized EBITDA prior to the issuance of Seller Note B if the financial statements are available at that time. The record indicates that the financial statements were available and that Parker Group relied on those statements in agreeing to the $7 million Seller Note B. Consequently, we AFFIRM the judgment of the district court. AFFIRMED.