Common use of Closing Date Payments Clause in Contracts

Closing Date Payments. The Merger Consideration shall be paid by Acquiror by Wire Transfer as follows: (i) to the Paying Agent, on behalf of the holders of Options, Warrants and Target Stock, the aggregate amount of the Merger Consideration, which amount includes the Hold-Back Amount, less the amount of the Escrow Amount; and (ii) to the Escrow Agent on behalf of the Preferred Stockholders and the Management Stockholders (collectively, the “Indemnifying Stockholders”), $27,000,000 (the “Escrow Amount”) (the Escrow Amount, plus any interest paid on such amount, are herein referred to as the “Escrow Fund”) for the purpose of securing (A) the indemnification obligations of the Indemnifying Stockholders set forth in this agreement, (B) payment of the Post-Closing Acquisition Expenses, if any, (C) the Net Consideration Adjustment, if any, to the extent it exceeds the Hold-Back Amount, and (D) payments pursuant to Article VIII. The Escrow Amount, which shall be comprised of amounts of Merger Consideration allocable to the Indemnifying Stockholders as set forth in Appendix 3.3 and Appendix 3.4, shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Fund shall be held as two separate trust funds. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.3 (the “Stockholder Trust Fund”) shall not be subject to any lien, attachment, trustee process or any judicial process of any creditor of any party and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.4 (the “Management Escrow”) shall be held in a “rabbi trust,” subject to the claims of Acquiror’s creditors in the event of Acquiror’s insolvency, according to “rabbi trust” terms substantially similar to those approved by the IRS in Rev. Proc. 92-64, and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Management Escrow shall be structured so that the Management Stockholders are not subject to income tax on the Escrow Amount until distributions are made to the Management Stockholders from the Management Escrow. All interest and other income earned on the Escrow Amount in the Stockholder Trust Fund through the Final Escrow Release Date will become part of the Stockholder Trust Fund and any portion of such interest and other income remaining in the Stockholder Trust Fund will be allocated to the Indemnifying Stockholders in proportion to the Merger Consideration set forth in Appendix 3.3 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Indemnifying Stockholders in accordance with Section 10.6. All interest and other income earned on the Escrow Amount in the Management Escrow through the Final Escrow Release Date will become part of the Management Escrow and any portion of such interest and other income remaining in the Management Escrow will be allocated to the Management Stockholders in proportion to the Merger Consideration set forth in Appendix 3.4 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Management Stockholders in accordance with Section 10.6. Acquiror shall have the right to receive a distribution from each of the Management Escrow and the Stockholder Trust Fund on a periodic basis in an amount equal to thirty-seven percent of the interest and other income earned on the Management Escrow and the Stockholder Trust Fund, respectively. Acquiror is intended to be, and shall be treated as, the owner for Tax purposes of all of the Merger Consideration held in the Escrow Fund and all of the items of income, deductions and credits attributable to the Merger Consideration and shall be liable for and pay all Taxes with respect to such amounts. In satisfaction of the payment of any Post-Closing Acquisition Expenses by Acquiror or the Surviving Corporation (in excess of any amounts accrued therefor on the Final Closing Balance Sheet), Acquiror and the Stockholder Representative shall deliver joint written instructions to the Escrow Agent within two Business Days from the date on which notice of any Post-Closing Acquisition Expenses is received by Acquiror or the Surviving Corporation, instructing the Escrow Agent to pay to Acquiror by Wire Transfer within two Business Days of receipt of such instructions an amount equal to the Post-Closing Acquisition Expenses from the Escrow Fund.

Closing Date Payments. The Merger Consideration shall be paid by Acquiror by Wire Transfer as follows(1) At Closing, the Purchaser will direct the Paying Agent to pay to the Vendors: (ia) an amount equal to the Cash Consideration Amount, less Estimated Closing Indebtedness, less Estimated Transaction Expenses, less the Estimated Working Capital Deficit, if any, plus the Estimated Working Capital Excess, if any, plus the Estimated Closing Cash, less the Adjustment Escrow Amount, and less 50% of the Indemnity Escrow Amount, which payment shall be made to the Paying Agent, on behalf of Agent for distribution to the holders of Options, Warrants and Target Stock, Vendors in accordance with the aggregate amount of the Merger Consideration, which amount includes the Hold-Back Amount, less the amount of the Escrow AmountPaying Agent Agreement; and (iib) to the Escrow Agent on behalf Consideration Share Amount, less 50% of the Preferred Stockholders and the Management Stockholders (collectively, the “Indemnifying Stockholders”), $27,000,000 (the “Escrow Amount”) (the Escrow Amount, plus any interest paid on such amount, are herein referred to as the “Escrow Fund”) for the purpose of securing (A) the indemnification obligations of the Indemnifying Stockholders set forth in this agreement, (B) payment of the Post-Closing Acquisition Expenses, if any, (C) the Net Consideration Adjustment, if any, to the extent it exceeds the Hold-Back Amount, and (D) payments pursuant to Article VIII. The Indemnity Escrow Amount, which amount the Purchaser shall be comprised pay by way of amounts the issuance of Merger the Consideration allocable Shares to the Indemnifying Stockholders Vendors in accordance with each Vendor's Pro Rata Share and registration instructions, each as set forth out in Appendix 3.3 and Appendix 3.4Exhibit A, shall having an aggregate value of the Consideration Share Amount, to be held by the Escrow Agent under in escrow in accordance with the Escrow Agreement pursuant and Section 3.3. (2) At Closing, the Purchaser shall lend to the terms thereof. The Escrow Fund shall be held as two separate trust funds. The Escrow Fund comprised Target Entity, on a non-interest bearing, demand basis, an amount equal to the Estimated Closing Indebtedness set out in the Estimated Statement, and the Target Entity hereby irrevocably directs the Purchaser to pay to each Payoff Creditor all amounts necessary to discharge fully the then outstanding Indebtedness of the Merger Consideration set forth Target Entity owed to such Payoff Creditor, in Appendix 3.3 (the “Stockholder Trust Fund”) shall not be subject to any lien, attachment, trustee process or any judicial process of any creditor of any party and shall be held and disbursed solely for the purposes amounts and in accordance with the instructions set forth in the applicable Payout Letter and the Payment Direction. (3) At Closing, the Purchaser shall lend to the Target Entity, on a non-interest bearing, demand basis, an amount equal to the Estimated Transaction Expenses set out in the Estimated Statement, and the Target Entity hereby irrevocably directs the Purchaser to pay to each Person who is owed Transaction Expenses the amount of the Transaction Expenses owed to such Person, in the amounts and in accordance with the instructions set forth in the Paying Agent Agreement. (4) At Closing, the Purchaser shall pay the Vendors' Transaction Expenses to each Person who is owed Vendors' Transaction Expenses as directed by the Vendors' Representative (which, for certainty, shall be paid from the cash portion of the Purchase Price owing to such Vendor). (5) At Closing, the Purchaser shall pay or cause to be paid, on behalf of the Vendors, to the Escrow Agent the amount of: (a) 50% of the Indemnity Escrow Amount, to be paid in cash and held by the Escrow Agent in escrow in accordance with the Escrow Agreement; and (b) 50% of the Indemnity Escrow Amount, which amount the Purchaser shall pay by way of the issuance to the Escrow Agent of the Escrow Shares having an aggregate value of 50% of the Indemnity Escrow Amount, to be held by the Escrow Agent in accordance with the Escrow Agreement. (6) At Closing, the Purchaser shall pay or cause to be paid on its behalf to the Escrow Agent the amount of the Adjustment Escrow Amount in accordance with the terms of the Escrow Agreement. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.4 (the “Management Escrow”) shall be held in a “rabbi trust,” subject to the claims of Acquiror’s creditors in the event of Acquiror’s insolvency, according to “rabbi trust” terms substantially similar to those approved by the IRS in Rev. Proc. 92-64, and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Management Escrow shall be structured so that the Management Stockholders are not subject to income tax on the Escrow Amount until distributions are made to the Management Stockholders from the Management Escrow. All interest and other income earned on the Escrow Amount in the Stockholder Trust Fund through the Final Escrow Release Date will become part of the Stockholder Trust Fund and any portion of such interest and other income remaining in the Stockholder Trust Fund will be allocated to the Indemnifying Stockholders in proportion to the Merger Consideration set forth in Appendix 3.3 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Indemnifying Stockholders in accordance with Section 10.6. All interest and other income earned on the Escrow Amount in the Management Escrow through the Final Escrow Release Date will become part of the Management Escrow and any portion of such interest and other income remaining in the Management Escrow will be allocated to the Management Stockholders in proportion to the Merger Consideration set forth in Appendix 3.4 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Management Stockholders in accordance with Section 10.6. Acquiror shall have the right to receive a distribution from each of the Management Escrow and the Stockholder Trust Fund on a periodic basis in an amount equal to thirty-seven percent of the interest and other income earned on the Management Escrow and the Stockholder Trust Fund, respectively. Acquiror is intended to be, and shall be treated as, the owner for Tax purposes of all of the Merger Consideration held in the Escrow Fund and all of the items of income, deductions and credits attributable to the Merger Consideration and shall be liable for and pay all Taxes with respect to such amounts. In satisfaction of the payment of any Post-Closing Acquisition Expenses by Acquiror or the Surviving Corporation (in excess of any amounts accrued therefor on the Final Closing Balance Sheet), Acquiror and the Stockholder Representative shall deliver joint written instructions to the Escrow Agent within two Business Days from the date on which notice of any Post-Closing Acquisition Expenses is received by Acquiror or the Surviving Corporation, instructing the Escrow Agent to pay to Acquiror by Wire Transfer within two Business Days of receipt of such instructions an amount equal to the Post-Closing Acquisition Expenses from the Escrow Fund.

Closing Date Payments. The Merger Consideration shall be paid At the Closing, in consideration of the purchase and sale of the Interests pursuant to Section 1.1 and subject to the further adjustments described in Section 2.2(c): (i) the Buyer shall, pursuant to written wire transfer instructions set forth on the Allocation Spreadsheet, pay the following amounts to the following Persons, in cash, by Acquiror by Wire Transfer as follows: wire transfer of immediately available funds, in consideration of the purchase and sale of the Interests other than the Rollover Interests: (i) to the Paying Escrow Agent, on behalf of the holders of Options, Warrants and Target Stock, the aggregate amount of the Merger Consideration, which amount includes the Hold-Back Amount, less the amount of sum representing the Escrow Amount; and (ii) Amount to the Escrow Agent on behalf of the Preferred Stockholders be held, administered and the Management Stockholders (collectively, the “Indemnifying Stockholders”), $27,000,000 (the “Escrow Amount”) (the Escrow Amount, plus any interest paid on such amount, are herein referred to as the “Escrow Fund”) for the purpose of securing (A) the indemnification obligations of the Indemnifying Stockholders set forth in this agreement, (B) payment of the Post-Closing Acquisition Expenses, if any, (C) the Net Consideration Adjustment, if any, to the extent it exceeds the Hold-Back Amount, and (D) payments pursuant to Article VIII. The Escrow Amount, which shall be comprised of amounts of Merger Consideration allocable to the Indemnifying Stockholders as set forth in Appendix 3.3 and Appendix 3.4, shall be held disbursed by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Fund shall be held as two separate trust funds. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.3 (the “Stockholder Trust Fund”) shall not be subject to any lien, attachment, trustee process or any judicial process of any creditor of any party and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.4 , as required by Section 2.1(b); (the “Management Escrow”ii) shall be held in a “rabbi trust,” subject to the claims of Acquiror’s creditors in the event of Acquiror’s insolvencyall Persons to whom any Estimated Closing Date Indebtedness is owed, according to “rabbi trust” terms substantially similar to those approved by the IRS in Rev. Proc. 92-64, and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Management Escrow shall be structured so that the Management Stockholders are not subject to income tax on the Escrow Amount until distributions are made to the Management Stockholders from the Management Escrow. All interest and other income earned on the Escrow Amount in the Stockholder Trust Fund through the Final Escrow Release Date will become part of the Stockholder Trust Fund and any portion of such interest and other income remaining in the Stockholder Trust Fund will be allocated to the Indemnifying Stockholders in proportion to the Merger Consideration set forth in Appendix 3.3 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Indemnifying Stockholders in accordance with Section 10.6. All interest and other income earned on the Escrow Amount in the Management Escrow through the Final Escrow Release Date will become part of the Management Escrow and any portion of such interest and other income remaining in the Management Escrow will be allocated to the Management Stockholders in proportion to the Merger Consideration set forth in Appendix 3.4 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Management Stockholders in accordance with Section 10.6. Acquiror shall have the right to receive a distribution from each of the Management Escrow and the Stockholder Trust Fund on a periodic basis in an amount equal to thirty-seven percent of the interest and other income earned on the Management Escrow and the Stockholder Trust Fund, respectively. Acquiror is intended to be, and shall be treated as, the owner for Tax purposes of all of the Merger Consideration held in the Escrow Fund and all of the items of income, deductions and credits attributable to the Merger Consideration and shall be liable for and pay all Taxes with respect to such amounts. In satisfaction of the payment of any Post-Closing Acquisition Expenses by Acquiror or the Surviving Corporation (in excess of any amounts accrued therefor on the Final Closing Balance Sheet), Acquiror and the Stockholder Representative shall deliver joint written instructions to the Escrow Agent within two Business Days from the date on which notice of any Post-Closing Acquisition Expenses is received by Acquiror or the Surviving Corporation, instructing the Escrow Agent to pay to Acquiror by Wire Transfer within two Business Days of receipt of such instructions an amount equal to the Post-amount so owed to such Persons; (iii) to all Persons to whom any Estimated Closing Acquisition Date Sale Transaction Expenses from are owed, an amount equal to the amount so owed to such Persons; (iv) to the Sellers’ Representative, an amount required to fully fund the Sellers’ Representative Account; and (iv) to the Sellers, in accordance with the Allocation Spreadsheet, a net amount (the “Net Cash Purchase Price”) equal to (A) the Estimated Purchase Price less (B) the Escrow FundAmount less (C) the Share Purchase Price (representing that portion of the Purchase Price payable in respect of the Rollover Interests below). In no event will the Buyer or the Acquired Group have any responsibility or liability for the allocation of the Net Cash Purchase Price among the Sellers. (ii) the Buyer shall deliver (or cause Buyer Parent to deliver), in consideration of the purchase and sale of the Rollover Interests, those ordinary shares of Buyer Parent (the “Share Purchase Price”) described on the Allocation Spreadsheet, which ordinary shares of Buyer Parent shall be deemed to have the Aggregate Buyer Parent Share Value, to the Rollover Members, with the number of ordinary shares of Buyer Parent to be delivered by Buyer to each Rollover Member set forth on the Allocation Spreadsheet.

Closing Date Payments. The Merger Consideration At the Closing, Buyer shall be paid by Acquiror by Wire Transfer as follows: (i) pay and deliver to the Paying AgentSeller, on behalf of the holders of Options, Warrants and Target Stockby wire transfer in Good Funds, the aggregate amount of Purchase Price less (a) the Merger ConsiderationDeposit (and interest accrued thereon), which amount includes (b) the Hold-Back AmountWorking Capital Escrow Amount (as defined below) and (c) the Purchase Price Reduction Escrow Amount (as defined below), less the amount of the Escrow Amount; and (ii) to instruct the Deposit Escrow Agent on behalf in writing to deliver the Deposit (and any interest accrued thereon) to Seller, by wire transfer of the Preferred Stockholders Good Funds, (iii) pay and the Management Stockholders (collectively, the “Indemnifying Stockholders”), $27,000,000 deliver in trust to JPMorgan Chase Bank or other similar escrow agent mutually acceptable by written agreement executed by Buyer and Seller (the “"Working Capital Escrow Amount”Agent") an escrow (the "Working Capital Adjustment Escrow Amount, plus any interest paid on such amount, are herein referred to as the “Escrow Fund”Account") for the purpose of securing (A) the indemnification obligations of the Indemnifying Stockholders set forth in this agreement, (B) payment of the Post-Closing Acquisition Expenses, if any, (C) the Net Consideration Adjustment, if any, to the extent it exceeds the Hold-Back Amount, and (D) payments pursuant to Article VIII. The Escrow Amount, which shall be comprised of amounts of Merger Consideration allocable to the Indemnifying Stockholders as set forth in Appendix 3.3 and Appendix 3.4, shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Fund shall be held as two separate trust funds. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.3 (the “Stockholder Trust Fund”) shall not be subject to any lien, attachment, trustee process or any judicial process of any creditor of any party and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.4 (the “Management Escrow”) shall be held in a “rabbi trust,” subject to the claims of Acquiror’s creditors in the event of Acquiror’s insolvency, according to “rabbi trust” terms substantially similar to those approved by the IRS in Rev. Proc. 92-64, and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Management Escrow shall be structured so that the Management Stockholders are not subject to income tax on the Escrow Amount until distributions are made to the Management Stockholders from the Management Escrow. All interest and other income earned on the Escrow Amount in the Stockholder Trust Fund through the Final Escrow Release Date will become part of the Stockholder Trust Fund and any portion of such interest and other income remaining in the Stockholder Trust Fund will be allocated to the Indemnifying Stockholders in proportion to the Merger Consideration set forth in Appendix 3.3 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Indemnifying Stockholders in accordance with Section 10.6. All interest and other income earned on the Escrow Amount in the Management Escrow through the Final Escrow Release Date will become part of the Management Escrow and any portion of such interest and other income remaining in the Management Escrow will be allocated to the Management Stockholders in proportion to the Merger Consideration set forth in Appendix 3.4 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Management Stockholders in accordance with Section 10.6. Acquiror shall have the right to receive a distribution from each of the Management Escrow and the Stockholder Trust Fund on a periodic basis in an amount equal to thirty-seven percent of Six Million Dollars and No Cents ($6,000,000) (the interest "Working Capital Escrow Amount") in Good Funds pursuant to an escrow agreement among Buyer, Seller and other income earned on the Management Working Capital Escrow and the Stockholder Trust Fund, respectively. Acquiror is intended to be, and shall be treated as, the owner for Tax purposes of all of the Merger Consideration held Agent substantially in the form attached hereto as Exhibit "F" (the "Working Capital Escrow Fund and all of the items of incomeAgreement"), deductions and credits attributable which will be available to the Merger Consideration and shall be liable for and pay all Taxes with respect to such amounts. In satisfaction of the payment of any Post-Closing Acquisition Expenses by Acquiror or the Surviving Corporation (in excess of satisfy any amounts accrued therefor on owed to Buyer or Seller pursuant to Section 2.2 hereof and (iv) pay and deliver to an escrow (the Final Closing Balance Sheet), Acquiror and "Purchase Price Reduction Escrow Account") with JPMorgan Chase Bank or other similar escrow agent or company reasonably designated by Seller (the Stockholder Representative shall deliver joint written instructions to the "Purchase Price Reduction Escrow Agent within two Business Days from the date on which notice of any Post-Closing Acquisition Expenses is received by Acquiror or the Surviving Corporation, instructing the Escrow Agent to pay to Acquiror by Wire Transfer within two Business Days of receipt of such instructions Agent") an amount equal to Three Million Dollars and No Cents ($3,000,000) (the Post"Purchase Price Reduction Escrow Amount") in Good Funds pursuant to an escrow agreement among Buyer, Seller and the Purchase Price Reduction Escrow Agent substantially in the form attached hereto as Exhibit "G" (the "Purchase Price Reduction Escrow Agreement"), which will be available for distribution to Buyer according to Section 2.1.4 hereof. Upon calculation of Net Working Capital as provided in Section 2.2, the Working Capital Escrow Amount shall be released pursuant to Section 2.2.3. Any portion of the Working Capital Escrow Amount not necessary to satisfy amounts payable to Buyer pursuant to such Section 2.2 shall promptly be disbursed to Seller together with all interest accrued thereon. The Working Capital Escrow Agent's escrow fees and charges shall be paid one-half by Seller and one-half by Buyer, in which respect the Seller and the Buyer shall not be jointly liable since each shall only be liable for its own part (one-half) of the said fees and charges. Following the expiration of thirty (30) days following the Closing Acquisition Expenses from Date, any portion of the Purchase Price Reduction Escrow FundAmount not necessary to satisfy Buyer's unpaid Reimbursement Request (as defined in the Purchase Price Reduction Escrow Agreement) pursuant to Section 2.1.4 shall promptly be disbursed to Seller together with all interest accrued thereon. The Purchase Price Reduction Escrow Agent's fees and charges shall be paid one-half by Seller and one-half by Buyer, in which respect the Seller and the Buyer shall not be jointly liable since each shall only be liable for its own part (one-half) of the said fees and charges.

Closing Date Payments. The Merger Consideration (a) No later than three Business Days prior to the Closing Date, the Company shall deliver to Carnivale the Closing Date Allocation Schedule. Carnivale shall be paid entitled to rely conclusively on the Closing Date Allocation Schedule, and, as between the Sellers, on the one hand, and Carnivale, on the other hand, any amounts delivered by Acquiror by Wire Transfer as follows:Carnivale to any Seller in accordance with the Closing Date Allocation Schedule shall be deemed for all purposes to have been delivered to the applicable Seller in full satisfaction of the obligations of Carnivale under this Section 1. (b) On the Closing Date, Carnivale shall cause to be issued (in electronic book entry form) to each Seller, in accordance with the Closing Date Allocation Schedule, a number of shares of Carnivale Common Stock equal to the product (rounded down to the nearest whole number) of (i) to the Paying Agent, on behalf of the holders of Options, Warrants and Target Stock, the aggregate amount of the Merger Aggregate Closing Consideration, which amount includes the Hold-Back Amount, less the amount of the Escrow Amount; and multiplied by (ii) to the Escrow Agent on behalf of the Preferred Stockholders and the Management Stockholders (collectivelysuch Seller’s Pro Rata Percentage, the “Indemnifying Stockholders”), $27,000,000 (the “Escrow Amount”) (the Escrow Amount, plus any interest paid on such amount, are herein referred to as the “Escrow Fund”) for the purpose of securing (A) the indemnification obligations of the Indemnifying Stockholders set forth in the Closing Date Allocation Schedule. (c) If any Company Ordinary Shares immediately prior to the Closing are unvested or are subject to a repurchase option or the risk of forfeiture under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Carnivale Common Stock issued in exchange for such Company Ordinary Shares will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and such shares of Carnivale Common Stock shall accordingly be marked with appropriate legends. (d) No fractional shares of Carnivale Common Stock shall be issued in connection with the Transaction, and no certificates or scrip for any such fractional shares shall be issued. (e) All Company Options outstanding immediately prior to the Closing under the Company Plan shall be treated in accordance with Section 5.4. (f) If, between the date of this agreementAgreement and the Closing, (B) payment the issued Company Shares or the outstanding shares of Carnivale Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change, the Post-Closing Acquisition Expenses, if any, (C) the Net Consideration Adjustment, if anyExchange Ratio shall, to the extent it exceeds the Hold-Back Amountnecessary, and (D) payments pursuant be equitably adjusted to Article VIII. The Escrow Amount, which shall be comprised of amounts of Merger Consideration allocable reflect such change to the Indemnifying Stockholders extent necessary to provide the parties hereto the same economic effect as set forth in Appendix 3.3 and Appendix 3.4contemplated by this Agreement prior to such stock dividend, shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Fund shall be held as two separate trust funds. The Escrow Fund comprised subdivision, reclassification, recapitalization, split, combination or exchange of the Merger Consideration set forth in Appendix 3.3 (the “Stockholder Trust Fund”) shall not be subject to any lienshares or other like change; provided, attachmenthowever, trustee process or any judicial process of any creditor of any party and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Escrow Fund comprised of the Merger Consideration set forth in Appendix 3.4 (the “Management Escrow”) shall be held in a “rabbi trust,” subject to the claims of Acquiror’s creditors in the event of Acquiror’s insolvency, according to “rabbi trust” terms substantially similar to those approved by the IRS in Rev. Proc. 92-64, and shall be held and disbursed solely for the purposes and in accordance with the applicable terms of the Escrow Agreement. The Management Escrow shall be structured so that the Management Stockholders are not subject to income tax on the Escrow Amount until distributions are made to the Management Stockholders from the Management Escrow. All interest and other income earned on the Escrow Amount in the Stockholder Trust Fund through the Final Escrow Release Date will become part of the Stockholder Trust Fund and any portion of such interest and other income remaining in the Stockholder Trust Fund nothing herein will be allocated construed to permit the Indemnifying Stockholders in proportion Company or Carnivale to the Merger Consideration set forth in Appendix 3.3 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Indemnifying Stockholders in accordance with Section 10.6. All interest and other income earned on the Escrow Amount in the Management Escrow through the Final Escrow Release Date will become part of the Management Escrow and take any portion of such interest and other income remaining in the Management Escrow will be allocated to the Management Stockholders in proportion to the Merger Consideration set forth in Appendix 3.4 on the Final Escrow Release Date and released to the Stockholder Representative for disbursement to the Management Stockholders in accordance with Section 10.6. Acquiror shall have the right to receive a distribution from each of the Management Escrow and the Stockholder Trust Fund on a periodic basis in an amount equal to thirty-seven percent of the interest and other income earned on the Management Escrow and the Stockholder Trust Fund, respectively. Acquiror is intended to be, and shall be treated as, the owner for Tax purposes of all of the Merger Consideration held in the Escrow Fund and all of the items of income, deductions and credits attributable to the Merger Consideration and shall be liable for and pay all Taxes action with respect to such amounts. In satisfaction Company Shares or Carnivale Common Stock, respectively, that is prohibited or not expressly permitted by the terms of the payment of any Post-Closing Acquisition Expenses by Acquiror or the Surviving Corporation (in excess of any amounts accrued therefor on the Final Closing Balance Sheet), Acquiror and the Stockholder Representative shall deliver joint written instructions to the Escrow Agent within two Business Days from the date on which notice of any Post-Closing Acquisition Expenses is received by Acquiror or the Surviving Corporation, instructing the Escrow Agent to pay to Acquiror by Wire Transfer within two Business Days of receipt of such instructions an amount equal to the Post-Closing Acquisition Expenses from the Escrow Fundthis Agreement.