Common use of Closing Merger Consideration Clause in Contracts

Closing Merger Consideration. (a) The closing of the Merger (the “Closing”) shall take place within three (3) Business Days after the satisfaction or waiver of each of the conditions set forth in Article 5 (except for such conditions that by their nature will be satisfied at Closing, but subject to the fulfillment or waiver of such conditions) or at such other time as the parties mutually agree in writing. The date on which the Closing actually takes place is referred to in this Agreement as the “Closing Date.” The Closing shall take place at the offices of APC, 1▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other location as APC and the Company mutually agree. The date on which the Closing actually occurs is herein referred to as the “Closing Date.” (b) Subject to adjustment in accordance with this Agreement (including Section 1.9), the aggregate consideration payable by APC pursuant to this Article 1 shall be an amount equal to 1,618,544 shares of Common Stock of APC (the “Merger Consideration”). (c) At the Closing, APC shall, as more fully described in Section 1.4 and Section 1.5: (i) deliver the Withheld Shares and the Milestone Shares (the Withheld Shares and the Milestone Shares referred to collectively as the “Escrow Shares”) to the Escrow Agent, to be administered by the Escrow Agent pursuant to the terms of this Agreement; and (ii) pursuant to the procedure described in this Article 1, deliver to the Stockholders the Merger Consideration to which they are entitled, minus the Withheld Shares, minus (2) a number of shares of APC Common Stock constituting the Milestone Shares, minus (3) a number of Escrow Shares (based on the market price of the APC Common Stock as of the close of business on the Business Day before the Closing Date) with a value equal to the amount (if any) of the Excess Specified Assets/Liabilities, as reflected in the Certified Closing Report delivered pursuant to Section 1.8(a) (the “Closing Consideration Amount”).

Closing Merger Consideration. Subject to the terms and conditions hereof, as consideration for the Merger, Parent shall pay at the Closing: (a) The closing to the Exchange Agent, for the benefit of the Merger holders of Company Capital Stock entitled thereto, (i) an aggregate amount in cash, equal to (A) $102,409,393, plus (B) the amount of the Interest Accrual, less (C) the amount of Closing Company Net Indebtedness excluding 2010 Interest (the “Closing”amount derived from subtracting the amount in clause (C) shall take place within three (3) Business Days after from the satisfaction or waiver of each sum of the conditions set forth amounts in Article 5 clauses (except for such conditions that by their nature will be satisfied at ClosingA) and (B), but subject to the fulfillment or waiver of such conditions) or at such other time as the parties mutually agree in writing. The date on which the Closing actually takes place is referred to in this Agreement as if any, the “Closing Date.” The Closing shall take place at the offices Cash”), and (ii) a number of APC, 1▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other location as APC and the Company mutually agree. The date on which shares of Parent Common Stock equal to the Closing actually occurs is herein referred Shares; and in each case less the Pro Rata Portion of such consideration payable to as the “Closing Date.”holders of Company Options with respect to such Company Options, which shall be payable by Parent pursuant to Section 1.7(d)(v); (b) Subject to adjustment in accordance with this Agreement (including Section 1.9), the aggregate consideration payable by APC pursuant to this Article 1 shall be an amount equal to 1,618,544 shares of Common Stock of APC (the “Merger Consideration”). (c) At the Closing, APC shall, as more fully described in Section 1.4 and Section 1.5: (i) deliver the Withheld Shares and the Milestone Shares (the Withheld Shares and the Milestone Shares referred to collectively as the “Escrow Shares”) to the Escrow Agent, to be administered by the Escrow Agent pursuant to the terms of this Agreement; and (ii) pursuant to the procedure described in this Article 1, deliver to the Stockholders the Merger Consideration to which they are entitled, minus the Withheld Shares, minus (2) a number of shares of APC Parent Common Stock constituting equal to the Milestone Shares, minus (3) a number of Closing Escrow Shares and the Stockholder Fund Escrow Shares; (based on c) the market price Founder Loans and all Interim Company Indebtedness by payment by wire transfer of cash in the total amount of the APC Common Stock Closing Founder Loan Cash and the total amounts due under the Interim Company Indebtedness to the holders of such indebtedness, such amount to be determined, allocated and distributed as specified in Schedule 1.6(c), as such schedule may be amended pursuant to the terms hereof up to one Business Day prior to the Closing. The Company represents and warrants that Schedule 1.6(c) (i) correctly and accurately sets forth the amount of the Closing Founder Loan Cash due as of the close dates set forth therein, and the holders thereof, and (ii) as amended prior to the Closing, will correctly and accurately set forth the amount due under all Closing Founder Loan Cash and Interim Company Indebtedness as of business on the Business Day before the Closing Date, and the holders thereof; and (d) with a value equal the Unpaid Third-Party Expenses by payment by wire transfer of cash in the total amount of the Unpaid Third-Party Expenses to the persons to which such amounts are owed, such amount (if any) to be determined, allocated and distributed as specified in Schedule 1.6(d), as such schedule may be amended pursuant to the terms hereof up to one Business Day prior to the Closing. At least one Business Day prior to the Closing Date, the Company shall deliver to Parent an amended Schedule 1.6(d), which the Company represents and warrants as of the Excess Specified Assets/LiabilitiesClosing Date will correctly and accurately set forth (i) the amount of the Company’s Third-Party Expenses as of the Closing Date (which, for the avoidance of doubt, shall be all of the Company’s Third-Party Expenses), and (ii) the amount of the Company’s Third-Party Expenses which have been incurred but not paid as reflected in of the Certified Closing Report delivered pursuant Date, along with wire transfer instructions for the third parties to Section 1.8(a) whom payment is to be made hereunder (the “Closing Consideration AmountUnpaid Third-Party Expenses”).

Closing Merger Consideration. (a) The closing of the Merger (the “Closing”) shall take place within three (3) Business Days after the satisfaction or waiver of each of the conditions set forth in Article 5 (except for such conditions that by their nature will be satisfied at Closing, but subject to the fulfillment or waiver of such conditions) or at such other time as the parties mutually agree in writing. The date on which the Closing actually takes place is referred to in this Agreement as the “Closing Date.” The Closing shall take place at the offices of APC, 1▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other location as APC and the Company mutually agree. The date on which the Closing actually occurs is herein referred to as the “Closing Date.” (b) Subject to adjustment in accordance with this Agreement (including Section 1.9), the aggregate consideration payable by APC pursuant to this Article 1 shall be an amount equal to 1,618,544 shares of Common Stock of APC (the “Merger Consideration”). (c) At the Closing, APC shallParent shall deliver, as more fully described in Section 1.4 and Section 1.5or cause to be delivered, by wire transfer of immediately available funds: (i) deliver to the Withheld Shares Exchange Agent (such amount to be paid by the Exchange Agent to the Stockholders pursuant to the Payments Agreement), cash in an aggregate amount equal to the Aggregate Closing Merger Consideration; minus (A) all amounts to be paid to Optionholders pursuant to Section 2.03(b)(ii), including all applicable payroll and the Milestone Shares employment taxes related thereto (the Withheld Shares and the Milestone Shares referred including any employer portions thereof); minus (C) all amounts to collectively as the “Escrow Shares”be paid to Warrantholders pursuant to Section 2.03(b)(iii). (ii) to the Escrow AgentCompany for payment though the Company’s payroll system no later than one day following the Closing with respect to employees of the Company, cash in an aggregate amount equal to the Option Consideration (as defined below) for each option to acquire shares of Company Common Stock (each, a “Company Option”) outstanding immediately prior to the Closing, to the extent vested (after application of any accelerated vesting in connection with the Closing) (each, a “Vested Company Option”). Each Vested Company Option shall be administered canceled and converted into the right to receive an amount in cash (the “Option Consideration”), without interest, equal to the product of (x) the aggregate number of Shares subject to such Vested Company Option, multiplied by (y) the excess of the Total Deemed Per Share Merger Consideration over the per share exercise price under such Vested Company Option. Parent and the Surviving Corporation shall be entitled to deduct from any payment to Optionholders under this Agreement the full amount of any payroll or other similar taxes (provided that the employer portion thereof shall be a Transaction Expense). (iii) to the Exchange Agent (such amount to be paid by the Escrow Exchange Agent to the Warrantholders pursuant to the Payments Agreement) cash in an aggregate amount equal to the Warrant Consideration (as defined below) for each warrant to acquire shares of Company Common Stock (each, a “Company Warrant”) outstanding immediately prior to the Closing. Each Company Warrant shall be canceled and converted, subject to the execution by the respective holder of the Company Warrant and delivery to the Company of a Warrant Termination Agreement (substantially in the form attached hereto as Exhibit C) prior to the Closing, into the right to receive an amount in cash (the “Warrant Consideration”), without interest, equal to the product of (x) the aggregate number of Shares subject to such Company Warrant, multiplied by (y) the excess of the Total Deemed Per Share Merger Consideration over the per share exercise price under such Company Warrant; (iv) to the Stockholders Representative, the amount of the Expense Fund in accordance with the terms of this Agreementspecified herein; and (iiv) pursuant the respective amounts of the Transaction Expenses and amounts in respect of Company Debt payable to each applicable recipient, as set forth in the procedure described in this Article 1, deliver to the Stockholders the Closing Merger Consideration to Schedule, which they are entitled, minus payments may be made via the Withheld Shares, minus (2) a number of shares of APC Common Stock constituting the Milestone Shares, minus (3) a number of Escrow Shares (based on the market price of the APC Common Stock as of the close of business on the Business Day before the Closing Date) with a value equal to the amount (if any) of the Excess Specified Assets/Liabilities, as reflected in the Certified Closing Report delivered pursuant to Section 1.8(a) (the “Closing Consideration Amount”)Exchange Agent.