Closing Procedures. (i) At or prior to the Closing, Acquirer shall deposit with ESOP Management and Trust Services Ltd., the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and such payments, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Payment. (ii) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Shareholder, by wire transfer of same-day funds, such Company Shareholder’s Consideration Portion of the Closing Consideration less (A) such Company Shareholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amount, if any, outstanding in respect of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal Consent. (iii) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. (iv) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement. (v) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity. (vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer. (vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder. (viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").
Appears in 1 contract
Sources: Share Purchase Agreement (National Instruments Corp)
Closing Procedures. (a) The Purchaser will cause the Purchaser’s Solicitors to prepare and deliver to the Vendor’s Solicitors, at least 5 Business Days (as defined in section 41) prior to the Completion Date, a vendor’s statement of adjustments and a Form A - Freehold Transfer (the “Transfer”) for the Strata Lot, together with the Housing Agreement Covenant (as defined in section 8) and the Option/RFR (as defined in section 8) duly executed by the Purchaser and, as applicable, the documentation relating to GST. The Purchaser will provide and shall be solely responsible for providing the Purchaser’s Solicitors with copies of this Contract (including any and all addendums and amendments hereto) and/or the Disclosure Statement (as hereinafter defined) as may be required by the Purchaser’s Solicitor. At the Vendor’s request the Purchaser may also be required to execute and deliver a one-page agreement in which the Purchaser agrees to be bound by the terms of the Housing Agreement Covenant.
(b) The Vendor will execute and deliver the Transfer and Vendor’s statement of adjustments to the Purchaser’s Solicitors on or before the Completion Date on their undertaking not to register the Transfer, on the Completion Date unless and until they hold in their trust account the balance of the Purchase Price (subject to subsection 15(c)) pursuant to the statement of adjustments and on the condition that, forthwith upon the Purchaser’s Solicitors obtaining a post registration index search from the applicable LTO indicating that, in the ordinary course of Land Title Office procedure, the Purchaser will become the registered owner of the Strata Lot (subject only to the Permitted Encumbrances and charges for which the Purchaser is responsible), the Purchaser will cause payment of the balance of the Purchase Price due on the Completion Date to be made by the Purchaser’s Solicitors to the Vendor’s Solicitors. The Housing Agreement Covenant and the Option/RFR will be filed for registration at the LTO by the Vendor’s Solicitors concurrently with the filing of the Transfer by the Purchaser’s Solicitors and in priority to any new mortgage or other security relating to financing arranged by the Purchaser.
(c) If the Purchaser is relying on a new mortgage to be registered against the Strata Lot to finance the Purchase Price, the Purchaser, while still required to pay the balance of the Purchase Price on the Completion Date, may wait to pay the balance of the Purchase Price to the Vendor until after submitting the Transfer and new mortgage documents for registration at the LTO, but only if, before making such filing, the Purchaser has: (i) At or prior made available for tender to the Closing, Acquirer shall deposit with ESOP Management Vendor that portion of the Purchase Price not secured by the new mortgage; (ii) fulfilled all the new mortgagee’s conditions for funding except submitting the new mortgage for registration; and Trust Services Ltd.(iii) made available to the Vendor, the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient Purchaser’s Solicitors’ undertaking to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid balance of the adjusted Purchase Price on submitting the Transfer and new mortgage for registration and the advance by the Company following new mortgagee of the Closing), the Repaid Company Debt new mortgage proceeds and the Closing Consideration less (A) Purchaser’s Solicitors’ undertaking to withdraw or cause the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents withdrawal of the United States (such holder, Form A - Freehold Transfer and new mortgage if for any reason he/she/it fails to pay the "U.S. Optionholders" and such payments, balance of the "U.S. Optionholder Payments"), and less (D) adjusted Purchase Price on the Option Cash Right PaymentCompletion Date.
(iid) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Shareholder, by wire The transfer of same-day funds, the Strata Lot will also be subject to the Vendor’s financing arranged in connection with the Development or any builders’ lien claims provided that the Vendor’s Solicitors undertake to clear title to the Strata Lot of all encumbrances related to such Company Shareholder’s Consideration Portion financing and such builders’ liens claims within a reasonable period of time after receiving the balance of the Closing Consideration less (A) such Company ShareholderPurchase Price due on the Completion Date. The Purchaser acknowledges that the Vendor’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amountfinancing, if any, outstanding in respect may remain as a charge against the common property of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to Development until the Paying Agent Vendor has completed the sale of a duly executed letter the balance of transmittal substantially the strata lots in the form attached hereto as Exhibit I-1 or I-2, as applicable (Development whereupon the "Shareholders Letter of Transmittal") (provided that Vendor covenants such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal Consent.
(iii) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement.
(iv) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement.
(v) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that financing will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunderdischarged entirely.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").
Appears in 1 contract
Sources: Contract of Purchase and Sale
Closing Procedures. The closing of this sale shall take place at the offices of the Escrow Agent , on or before thirty (30) days after the expiration of the Contingency Period. Neither Seller nor Buyer need be physically present at such Closing. Any reference in this Agreement to "a closing", the "closing", or the "day of closing" shall mean the closing of the purchase and sale contemplated by this Agreement. The following shall occur on or before the Closing Date:
(a) Seller shall deliver or cause to be delivered to Buyer, through escrow or directly to Buyer, the following documents duly executed and acknowledged, where appropriate:
(i) At or prior Special Warranty Deed conveying good and marketable fee simple title to the Closing, Acquirer shall deposit with ESOP Management and Trust Services Ltd., Premises to Buyer subject only to the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and such payments, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Payment.Permitted Exceptions;
(ii) At the Closing▇▇▇▇ of Sale conveying good, Acquirer will instruct the Paying Agent unencumbered title to pay any personal property to each Company Shareholder, by wire transfer Buyer;
(iii) A certificate of samenon-day funds, such Company Shareholder’s Consideration Portion foreign status pursuant to section 1445 of the Closing Consideration less Internal Revenue Code;
(Aiv) If required by Buyer's title insurer, an affidavit of title in form reasonably acceptable to Buyer's title insurer;
(v) The original of all Tenant leases currently in effect for the Premises or any portion thereof;
(vi) A current listing of any Tenant security deposits and prepaid rents and an assignment of such Company Shareholder’s portion deposits and prepaid rents to Purchaser;
(vii) A rent roll certificate by Seller dated as of the Adjustment Escrow Amountlast day of the last full month immediately preceding the closing date, which rent roll shall show the Indemnity Escrow Amount name, space, monthly rental, prepaid rent and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amountsecurity deposit, if any, outstanding in respect paid by each Tenant, and the status of any default(s) or non-payment of rent by any Tenant(s);
(viii) A copy of Seller's letter to Tenant notifying it of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all sale of the certificates or instruments which immediately prior Premises and directing that all future rents be paid to the Closing represented issued Buyer;
(ix) An assignment of all (i) Tenant leases, (ii) any monies and outstanding Company Share Capital sums deposited with and/or held by Company Shareholder Seller as Tenant deposits, including, without limitation, all security and cleaning deposits required to be held by Seller under the terms of any Tenant lease, (or the Affidavit of Lost Share Certificate iii) any service contracts which Buyer elects to assume, (iv) manufacturers' and vendors' warranties, and (v) transferable warranties and guaranties then in the form attached to the Shareholders Letter of Transmittal)effect, Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") andif any, with respect to Company Shareholders that are individuals any of the improvements located on the Premises by an assignment and residents assumption agreement in a jurisdiction that follows the community property regime, a duly executed Spousal Consent.form acceptable to Buyer;
(iiix) At A certificate of authority authorizing the Closingofficer signing on behalf of Seller to make all deliveries, Acquirer will instruct the Paying Agent execute all documents and instruments and perform all actions necessary and appropriate to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to fulfill the terms of this Agreement;
(xi) An affidavit stating that Seller has reviewed all of the estoppel certificates from all Tenants and that, to the best of Seller's knowledge, the same are true and correct in all material respects;
(xii) Evidence of payment of all debts or obligations of Seller related to the Premises as of the closing date; and
(xiii) Such other documents as may be reasonably necessary and appropriate to complete the Closing of the transaction contemplated hereby.
(ivb) At the Closing, Acquirer will instruct the Paying Agent Buyer shall deliver to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion Seller:
(i) The balance of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount Purchase Price as adjusted in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to accordance with the terms of this Agreement; (ii) Corporate resolutions of Buyer, if Buyer is a corporation, or otherwise other documentation in such form as may be satisfactory to Seller and the title company, including Buyer's full authority to purchase the Property; and
(iii) Such other documents as may be reasonably necessary and appropriate to complete the Closing of the transaction contemplated hereby.
(vc) At The Buyer and Seller shall each sign a mutually agreeable Closing Statement setting forth the Purchase Price and all items of cost and expense or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding adjustment provided for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entityherein.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").
Appears in 1 contract
Sources: Real Estate Purchase Agreement (First Security Bancorp Inc /Ky/)
Closing Procedures. (i) At or prior to the Closing, Acquirer shall deposit with ESOP Management and Trust Services Ltd., the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and such payments, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Payment.
(iia) At the Closing, Acquirer Seller will instruct deliver to the Paying Agent Escrow Agent, (i) the Stock Certificate representing the Shares, a copy of which is attached as Exhibit A to pay this Agreement, duly endorsed by Seller, (ii) an executed and notarized stock power, together with such other instruments as may be reasonably requested by the Company’s transfer agent to each Company Shareholder, by wire transfer of same-day funds, such Company Shareholder’s Consideration Portion effect the sale of the Closing Consideration less Shares to ▇▇▇▇▇▇, (Aiii) such Company Shareholder’s portion an executed Release Notice, a copy of which is attached to the Escrow Agreement, (iv) a written resignation from his position as an officer of the Adjustment Escrow AmountCompany, in each and every capacity, effective at the Closing, (v) a written resignation from his position as a director of the Company, (vi) all existing minute books, share transfer records, corporate seals and other materials relating to the corporate administration and governance of the Company, (vii) an executed Sub-Certification, a copy which is attached as Exhibit B to this Agreement, and (viii) any other documents that may be necessary to transfer the Shares to ▇▇▇▇▇▇, free and clear of all Liens (collectively, the Indemnity "Transfer Documents").
(b) After the Escrow Amount Agent has received the Transfer Documents and advised ▇▇▇▇▇▇ of such receipt, ▇▇▇▇▇▇ will promptly execute a Release Notice and deliver the executed Release Notice to the Escrow Agent.
(c) Upon receipt of a Release Notice executed by each of ▇▇▇▇▇▇ and Seller, the Escrow Agent will release the Purchase Price to Seller in accordance with the Escrow Agreement. The delivery of the Transfer Documents and Escrow Agent’s disbursement of the Purchase Price shall be deemed to take place simultaneously. If a fully executed Release Notice has not been received by Escrow Agent within seven (7) days after the Closing Date, then Escrow Agent shall return the Purchase Price to ▇▇▇▇▇▇ and all parties’ obligations under this Agreement and the Shareholders’ Agent Expense Amount Escrow Agreement shall be terminated, as provided in respect of such Company Shares and Section 9 below.
(Bd) the Company Loan Amount, if any, outstanding in respect Seller will submit his resignation as a director of the Company ShareholderCompany.
(e) Seller agrees that promptly after written request of ▇▇▇▇▇▇ together with a final written draft of the Annual Report on Form 10-K for the period ended March 31, as soon as reasonably practicable2013, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax Company, he will execute and provisions related return the certification attached as Exhibit C to 102 Company Shares), together with all of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") andthis Agreement, with respect an explanation as to Company Shareholders any matters set forth in such report that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal Consent.
(iii) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement.
(iv) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement.
(v) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter would cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are him not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior able to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of provide such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), certification as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirerwritten.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").
Appears in 1 contract
Sources: Stock Purchase Agreement (Gray Fox Petroleum Corp.)
Closing Procedures. At Closing, subject to the delivery (or waiver of delivery by the relevant Party) of each of the deliverables in § 6.3, the Parties shall perform the acts identified in this § 6.4 below in the order set out therein. The Parties agree that the relevant Party shall carry out each of the given acts no sooner than after the valid occurrence of the immediately preceding act, unless the Parties agree otherwise, provided that no such obligation shall be deemed consummated unless all such obligations are consummated, in which event all such obligations shall be deemed to have been consummated simultaneously. To the extent that any individual obligations shall be performed prior to the Closing Date, these obligations shall nevertheless be considered to have been carried out in the order set forth below.
(i) At or prior The Purchaser shall furnish the Escrow Agent with its written instructions under the terms of the Escrow Agreement to transfer the funds held in the BUTU Escrow Account to the Closing, Acquirer Existing Lender as partial repayment of the Existing Loan Facility; (ii) the Vendor shall deposit with ESOP Management and Trust Services Ltd., cause the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient Company to pay the unpaid Transaction Expenses BUTU Prepayment Amount and (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (Aiii) the Adjustment Escrow Amount, less (B) Existing Lender shall confirm the Indemnity Escrow Amount, less (C) partial repayment of the aggregate amount of payments Existing Loan Facility in respect of In that amount.
6.4.2 The Vendor and the Money Vested Company Options to Company Vested Optionholders that are residents Purchaser shall sign the Shareholder Register of the United States (such holderCompany in their respective capacities as seller and buyer of the Bucuresti Shares, evidencing that the "U.S. Optionholders" effective transfer of the Bucuresti Shares from the Vendor to the Purchaser, free and such paymentsclear of any and all Encumbrances, other than the "U.S. Optionholder Payments")Permitted Encumbrances, and less (D) the Option Cash Right Paymenttogether with all rights attached thereto, has taken effect.
(ii) At 6.4.3 The Vendor and the ClosingPurchaser shall sign the Shareholder Register of BEA Hotels Romania in their respective capacities as seller and buyer of the BEA Romania Shares, Acquirer will instruct evidencing that the Paying Agent to pay to each Company Shareholder, by wire effective transfer of same-day fundsthe BEA Romania Shares from the Vendor to the Purchaser, such Company Shareholder’s Consideration Portion free and clear of any and all Encumbrances, other than the Permitted Encumbrances, and together with all rights attached thereto, has taken effect. The provisions of this § 6.4.3 shall apply, mutatis mutandis, to the signing of the Closing Consideration less (A) such Company Shareholder’s portion Shareholder Register of BEA Hotels Romania by the Adjustment Escrow AmountParent and by the Purchaser, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amountrespectively, if any, outstanding in respect of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax sale and provisions related to 102 Company Shares), together with all transfer of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal ConsentParent Share.
(iii) At the Closing6.4.4 However, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement.
(iv) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement.
(v) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as pending receipt of the Closing Payments in order to discharge terms of § 6.4.5 below, the amounts payable thereunderVendor shall retain under its control the Shareholder Registers of both the Company and BEA Hotels Romania, as well as that of Romextur.
6.4.5 The Parties shall thereupon procure the immediate transfer of the following amounts (viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closingjointly, the Paying Agent “Closing Payments”) by quickest available means, namely:
a. the Vendor shall deposit procure that the Company shall transfer the Elbit Guarantee Fee together with the Shareholders’ Agent $200,000 Elbit Consultancy Fee to Elbit, or to its order; and thereafter
b. the Purchaser shall transfer the Bank Hapoalim Pay-Off Amount and deposit same into the Notary Account, whereupon the Notary shall release the Bank Hapoalim Consent Letter to the Vendor; and thereafter
c. the Parties shall thereupon procure that the full amount of the Escrow Deposit is transferred to the Vendor’s Bank Account, or otherwise to its order, and same by means of their joint execution of the Joint Closing Release Instructions and the delivery thereof to the Escrow Agent; and thereafter
d. the Purchaser shall procure that the balance remaining due and payable on account of the Estimated Net Purchase Price or Revised Estimated Net Purchase Price, as relevant (that is to say total amount of the "Shareholders’ Agent Expense Amount")Estimated Net Purchase Price or Revised Estimated Net Purchase Price, which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agentless that cumulative amount comprising: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or Bank Hapoalim Pay-Off Amount; (ii) the Escrow Deposit (iii) the Advance Payment; (iv) the Vendor Loan and (v) the purchase price for the Parent Share and (vi) the Vendor W&I Contribution is transferred to the Vendor’s Bank Account.
6.4.6 The Purchaser and the Company shall deliver to the Vendor copies of the Payment Confirmations in respect of the transfers of the Closing Payments made under § 6.4.5 above;
6.4.7 Once the Closing Payments referred to in § 6.4.5 have been credited to the relevant destination banking accounts as otherwise determined by aforesaid, the Advisory Group Vendors shall confirm to the Purchaser receipt of the Estimated Net Purchase Price or Revised Estimated Net Purchase Price, as relevant.
6.4.8 Immediately upon receipt of the confirmations referred to in § 6.4.7 above:
a. the Parties shall procure that each of the Target Companies shall sign and deliver to each of their respective Incumbent Directors a duly signed Deed of Waiver of Claims in respect of their incumbencies as Incumbent Directors, in the form and text attached hereto as Schedule 18; and
b. the Vendor shall release the Shareholders Registers of the Company, of Romextur and of BEA Hotels Romania, respectively, to the Purchaser.
6.4.9 In case of the Closing Date occurring on a Scheduled Closing Date other than the Anticipated Closing Date, the Parties shall thereupon act jointly in order to convene the shareholder meetings of the Company and Romextur under the GSM Convocation Notices published in terms of § 6.1.4 above, and to pass the Closing Shareholder Resolutions in compliance with the relevant provisions of Applicable (Romanian) Law pursuant to which: (i) all the "Shareholders’ Agent Expense Fund"Incumbent Directors (being members of the board of directors of the Target Companies as at Closing) and shall be recalled and discharged from office with no further liability whatsoever to the respective Target Companies (save for liability arising from wilful misconduct or criminal acts); and (ii) the Purchaser Nominated Directors shall be nominated and appointed in their place and stead.
6.4.10 Finally, the Purchaser and the Vendor shall jointly execute the Certificate of Consummation.
Appears in 1 contract
Sources: Master Agreement for the Sale and Purchase of Shares (Elbit Imaging LTD)
Closing Procedures. The Title Company shall close the Escrow as follows:
(i) At or prior to It shall record the Closing, Acquirer shall deposit with ESOP Management and Trust Services Ltd., the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt Devcon Lien Waiver and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and such payments, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Payment.Lease Memorandum;
(ii) At It shall deliver to M-F Downtown the Closing, Acquirer will instruct the Paying Agent to pay to each Company Shareholder, by wire transfer of same-day funds, such Company Shareholder’s Consideration Portion of the Closing Consideration less following:
(A) such Company Shareholder’s portion of The Purchase Price, adjusted by the Adjustment Escrow Amount, the Indemnity Escrow Amount closing costs and the Shareholders’ Agent Expense Amount prorations as set forth in respect of such Company Shares and Section 18(g) below; and
(B) the Company Loan Amount, if any, outstanding in respect A copy of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable unrecorded Grant Deed;
(the "Shareholders Letter of Transmittal"C) (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all A certified copy of the certificates or instruments recorded Devcon Lien Waiver and the recorded Lease Memorandum;
(D) An executed original of the Assignment Agreement, the Building 3 Lease Amendment, the Work Letters Amendment and the Project Management Agreement;
(E) The original Five Year Note, One Year Note, Settlement Funding Note, Settlement Note Assignment, Plans Assignment, Warrants, Handspring Guaranty and Handspring Pledge; and
(F) A copy of all other documents which immediately prior to were delivered into the Closing represented issued and outstanding Company Share Capital held Escrow by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal Consentany party hereto.
(iii) At It shall deliver to HFC the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less following:
(A) such Company Optionholder’s portion of the Adjustment Escrow AmountThe original, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and unrecorded Grant Deed;
(B) the amount, if any, A certified copy of the Company Loan Amount owed to recorded Devcon Lien Waiver and the Company recorded Lease Memorandum;
(C) An executed original of the Assignment Agreement, the Building 3 Lease Amendment, the Work Letters Amendment and the Project Management Agreement;
(D) The executed originals of the Non-Foreign Person Affidavits; and
(E) A copy of all other documents which were delivered into the Escrow by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreementparty hereto.
(iv) At It shall deliver to Handspring the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement.following:
(v) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion An executed original of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and Assignment Agreement; and
(B) A copy of all other documents which were delivered into the amount, if any, of the Company Loan Amount owed to the Company Escrow by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirerparty hereto.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").
Appears in 1 contract
Sources: Property Purchase and Lease Modification Agreement (Handspring Inc)
Closing Procedures. (i) At or prior to the Closing, Acquirer shall deposit with ESOP Management and Trust Services Ltd., the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and such payments, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Payment.
(ii) At the Closing, Acquirer subject to the terms and conditions of this Agreement, the parties shall take the following steps:
(a) Each Seller who is receiving shares of Parent Common Stock under this Agreement shall deliver to Parent a counterpart of a Restricted Stock Agreement, duly executed by such Seller, covering the number of shares of Parent Common Stock that such Seller will instruct the Paying Agent be entitled to pay receive pursuant to Article 1.
(b) Parent shall deliver to each Seller who is receiving shares of Parent Common Stock under this Agreement a counterpart of a Restricted Stock Agreement, duly executed by Parent, covering the number of shares of Parent Common Stock that such Seller will be entitled to receive pursuant to Article 1.
(c) Each Seller who is receiving shares of Parent Common Stock under this Agreement shall deliver to Parent a Representation Letter, duly executed by such Seller.
(d) Each Seller that is not a natural person shall have provided a certificate, dated the Closing Date, executed by a duly authorized person of such Seller, certifying as of the Closing Date (i) a true and complete copy of the resolutions of the managing body of such Seller authorizing the execution, delivery, and performance of this Agreement and the Ancillary Documents and the transactions contemplated hereby and thereby, which resolutions shall then be in full force and effect, and (ii) the incumbency of the authorized persons executing this Agreement and the Ancillary Documents on behalf of such Seller.
(e) The Sellers’ Representatives shall provide certificates of the appropriate Secretaries of State certifying as of a recent date as to the good standing of the Company, and each of its subsidiaries, in its jurisdiction of formation and each other state where it is qualified to do business.
(f) The Sellers’ Representatives shall provide the written resignations or evidence of removal, effective as of the Closing Date, of (i) the directors of the Company Shareholderand (ii) the directors of the Company’s subsidiaries as requested by Parent pursuant to Section 5.9(a).
(g) (i) Parent shall execute and deliver to the Sellers’ Representatives a counterpart of each Escrow Agreement, (ii) the Sellers’ Representatives shall execute and deliver to Parent a counterpart of each Escrow Agreement, and (iii) the Escrow Agent shall execute and deliver to the Sellers’ Representatives and Parent a counterpart of each Escrow Agreement.
(h) The Stockholders shall deliver to Parent certificates in valid form evidencing the Outstanding Common Shares, in a form suitable for transfer, with duly executed instruments of transfer in respect of the Outstanding Common Shares.
(i) The Sellers’ Representatives shall deliver to Parent all original Notes, Debentures and Redemption Notes.
(j) For each unexercised and unexpired Company Warrant outstanding as of immediately prior to the issuance of the Redemption Notes, the Sellers’ Representatives shall deliver to the Company a Warrant Surrender Agreement duly executed by the applicable Redemption Noteholder.
(k) The Sellers’ Representatives shall deliver to Parent a certificate, in form and substance reasonably satisfactory to Parent and duly executed by an authorized officer of the Company, certifying any facts that would exempt the transactions contemplated hereby from withholding under Section 1445 of the Code.
(l) The Sellers’ Representatives shall deliver to Parent a properly executed Form 8023 pursuant to Section 5.17(a)(ii).
(m) Parent shall pay, by wire transfer of same-day immediately available funds, such Company Shareholder’s Consideration Portion of the Closing Consideration less (A) such Company Shareholder’s portion of Senior Debt Amount in accordance with the Adjustment Escrow Amount, the Indemnity Escrow Amount Pay-Off Letters and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amount, if any, outstanding in respect of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal ConsentDirection Letter.
(iiin) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders)Parent shall pay, by wire transfer of same-day immediately available funds, such the Company Optionholder’s portion of Transaction Costs incurred prior to the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount Closing in accordance with invoices provided to Parent and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this AgreementDirection Letter.
(ivo) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company WarrantholderParent shall pay, by wire transfer of same-day immediately available funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Net Distributable Profit Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to Stockholders in accordance with the terms of this AgreementDirection Letter.
(vp) At or prior to the Closing, Acquirer Parent shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, payments and shall thereafter cause issue the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any shares required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entityArticle 1.
(viq) At or prior ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the ClosingCompany, Acquirer and ▇▇▇▇▇▇▇ Procter LLP, counsel to certain Sellers, shall deposit with deliver the 102 Trustee (subject Tax Opinion to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 TrusteeCompany, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of unless such Unvested Company Options (and with respect to In the Money Unvested Company Options held delivery is waived by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to AcquirerParent.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").
Appears in 1 contract
Sources: Securities Purchase Agreement (Piper Jaffray Companies)
Closing Procedures. Whenever SPS becomes obligated to pay an additional Purchase Price Payment for a State Tract 5/6 Offset Well as described in subsection (a) above, or if as described in subsection (b) above Grantee in its discretion agrees to make any additional Offered Well and the related Production Unit subject to the Conveyance and SPS in its discretion agrees to pay a Purchase Price Payment therefor:
(i) At or prior to Grantor and Grantee shall in connection therewith execute and deliver a Purchase Agreement Supplement, which shall specify the Closing, Acquirer shall deposit with ESOP Management and Trust Services Ltd., the Israeli paying agent (the "Paying Agent"), an amount of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt Purchase Price Payment which they have agreed upon for such Offered Well and the Closing Consideration less related Production Unit and which shall contain any exceptions to representations and warranties, or additional representations, warranties, covenants or other matters (Aincluding exclusions from the Release Acreage as contemplated in Section 2.5) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" as Grantor and such payments, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Payment.Grantee may agree upon;
(ii) At Grantee shall prepare a Conveyance Supplement which shall contain a legal description for such Production Unit, a Delivery Point for the Closingfield in which such Production Unit is located (if the same has not already been designated for such field), Acquirer will instruct the Paying Agent to pay to each Company Shareholder, by wire transfer of same-day funds, such Company Shareholder’s Consideration Portion of the Closing Consideration less (A) such Company Shareholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and set out Grantor's net revenue interest and working interest therein and the Shareholders’ Agent Expense Amount in respect of such Company Shares and amount (B) the Company Loan Amount, if any, outstanding in respect of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender equal to the Paying Agent of a duly executed letter of transmittal substantially in Purchase Price Payment which Grantor will concurrently receive) by which the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall Primary Sum is to be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal Consent.increased;
(iii) At Grantor and Marketer shall prepare a supplement to the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amountTransTexas Marketing Agreements, if anyproduction from new fields is to be sold thereunder, of the Company Loan Amount owed to the Company by which shall contain a Delivery Point and a sales price for production from such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement.field;
(iv) At the ClosingFund V, Acquirer will instruct the Paying Agent to pay Fund VI and Marketer shall prepare supplements to the Company WarrantholderProduction Sales Agreements, by wire transfer of same-day fundsif production from new fields is to be sold thereunder, which shall contain a Delivery Point and a sales price for production from such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement.field; and
(v) At On or prior before such Subsequent Closing Date, Grantor, Marketer and Grantee shall execute and deliver and file of record such Conveyance Supplement and such supplements to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount TransTexas Marketing Agreements and the Shareholders’ Agent Expense Amount Production Sales Agreements, Grantor shall satisfy all other conditions in respect of such U.S. Optionholder PaymentsSections 3.3 or 3.4, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").as
Appears in 1 contract
Closing Procedures. 5.1 From and after the Effective Time: (ia) At or prior certificates representing BioCan Shares shall represent only the right to receive the Closingconsideration to which the holder of such BioCan Share is entitled under the Arrangement; (b) and certificates representing Epimeron Shares shall represent only the right to receive the consideration to which the holder of such Epimeron Share is entitled under the Arrangement.
5.2 Makena shall cause the Depositary to, Acquirer shall as soon as practicable following the later of the Effective Date and the date of deposit with ESOP Management by a former holder of BioCan Shares and Trust Services Ltd.Epimeron Shares of a duly completed Letter of Transmittal, the Israeli paying agent certificates representing such BioCan Shares or Epimeron Shares, as applicable, and such other documents and instruments as the Depositary may reasonably require, either:
(a) forward or cause to be forwarded by first class mail (postage prepaid) to such former holder at the "Paying Agent")address specified in the Letter of Transmittal; or
(b) if requested by such holder in the Letter of Transmittal, an amount of cash sufficient make available or cause to pay be made available at the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid Depositary for pickup by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and certificates for Makena Shares which such paymentsholder has the right to receive pursuant to the Arrangement, the "U.S. Optionholder Payments"), and less (D) the Option Cash Right Paymentnet of any applicable withholding taxes.
(ii) At 5.3 Makena’s transfer agent shall register Makena Shares in the Closing, Acquirer will instruct name of each former BioCan Shareholder and Epimeron Shareholder entitled thereto or as otherwise instructed in the Paying Agent to pay to each Company Shareholder, Letter of Transmittal deposited by wire transfer of same-day funds, such Company Shareholder’s Consideration Portion of the Closing Consideration less (A) such Company Shareholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amount, if any, outstanding in respect of the Company former BioCan Shareholder or Epimeron Shareholder, as soon as reasonably practicableapplicable, but and shall deliver such shares in any event, no later than five Business Days following surrender to accordance with Section 5.2 and the Paying Agent terms and conditions of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all of the certificates or instruments .
5.4 If any certificate which immediately prior to the Closing Effective Time represented issued and an interest in outstanding Company Share Capital held BioCan Shares or Epimeron Shares has been lost, stolen or destroyed, upon the making of an affidavit of that fact by Company Shareholder (the person claiming such certificate to have been lost, stolen or destroyed, the Affidavit of Lost Share Certificate Depositary shall deliver in exchange for such lost stolen or destroyed certificate the form attached consideration to which the holder is entitled pursuant to the Shareholders Letter of Transmittal)Arrangement (and any dividends or distributions with respect thereto) as determined in accordance with the Arrangement. The person who is entitled to receive such consideration shall, Share Transfer Deeds (as a condition precedent to the extent not already delivered at Closing) (receipt thereof, give a bond to each of the "Converting Instruments")Depositary and Makena, a certificate confirming such Company Shareholder’s information contained which bond is in form and substance satisfactory to each of the Spreadsheet, in a form attached to Depositary and Makena or shall otherwise indemnify the Shareholders Letter Depositary and Makena against any claim that may be made against any of Transmittal (a "Closing Allocation Certificate") and, them with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regimecertificate alleged to have been lost, a duly executed Spousal Consentstolen or destroyed.
(iii) At the Closing5.5 Notwithstanding anything herein contained, Acquirer no fractional Makena Shares will instruct the Paying Agent to pay to each Company Optionholder who holds be issued. In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amountevent that a holder would otherwise be entitled to a fractional Makena Share hereunder, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect number of Makena Shares issued to such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed holder shall be rounded up to the Company by such Company Optionholder (provided that such payments shall next greater whole number of Makena Shares if the fractional entitlement is equal to or greater than 0.5 and shall, without any additional compensation, be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender rounded down to the Paying Agent next lesser whole number of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to Makena Shares if the terms of this Agreement.
(iv) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments fractional entitlement is less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Warrant Termination Agreement), pursuant to Section 1.1(d) and subject to the terms of this Agreement.
(v) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.
(viii) Notwithstanding the other provisions of this ARTICLE 1, at the Closing, the Paying Agent shall deposit with the Shareholders’ Agent $200,000 (the "Shareholders’ Agent Expense Amount"), which shall be deemed to be withheld from the consideration otherwise payable at the Closing to each Indemnifying Party in accordance with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used by the Shareholders’ Agent: (i) for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7 or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund").than
Appears in 1 contract
Sources: Arrangement Agreement
Closing Procedures. (i) At or prior to Provided the Closing, Acquirer shall deposit with ESOP Management contingencies set forth in Sections 2.02 and Trust Services Ltd., the Israeli paying agent (the "Paying Agent"), an amount 2.03 of cash sufficient to pay the unpaid Transaction Expenses (other than any unpaid Transaction Expenses that will be paid by the Company following the Closing), the Repaid Company Debt and the Closing Consideration less (A) the Adjustment Escrow Amount, less (B) the Indemnity Escrow Amount, less (C) the aggregate amount of payments in respect of In the Money Vested Company Options to Company Vested Optionholders that are residents of the United States (such holder, the "U.S. Optionholders" and such payments, the "U.S. Optionholder Payments")this Agreement have been satisfied, and less (D) all other obligations of Seller and Buyer under this Agreement have been met, Escrow Holder shall proceed to close the Option Cash Right Payment.
(ii) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Shareholder, by wire transfer of same-day funds, such Company Shareholder’s Consideration Portion of the Closing Consideration less (A) such Company Shareholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Shares and (B) the Company Loan Amount, if any, outstanding in respect of the Company Shareholder, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Paying Agent of a duly executed letter of transmittal substantially in the form attached hereto as Exhibit I-1 or I-2, as applicable (the "Shareholders Letter of Transmittal") (provided that such payments shall be subject to Section 1.1(f) with respect to the withholding of Israeli Tax and provisions related to 102 Company Shares), together with all of the certificates or instruments which immediately prior to the Closing represented issued and outstanding Company Share Capital held by Company Shareholder (or the Affidavit of Lost Share Certificate in the form attached to the Shareholders Letter of Transmittal), Share Transfer Deeds (to the extent not already delivered at Closing) (the "Converting Instruments"), a certificate confirming such Company Shareholder’s information contained in the Spreadsheet, in a form attached to the Shareholders Letter of Transmittal (a "Closing Allocation Certificate") and, with respect to Company Shareholders that are individuals and residents in a jurisdiction that follows the community property regime, a duly executed Spousal Consent.
(iii) At the Closing, Acquirer will instruct the Paying Agent to pay to each Company Optionholder who holds In the Money Vested Company Options at the Closing (other than In the Money Vested Company Options held by U.S. Company Optionholders), by wire transfer of same-day funds, such Company Optionholder’s portion of the Vested Option Payments less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such In the Money Vested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) escrow established pursuant to Section 1.1(c) and subject to the terms 4.01 of this Agreement.Agreement by taking the following actions in the order set forth:
(iva) At the Closing, Acquirer will instruct the Paying Agent to pay to the Company Warrantholder, by wire transfer of same-day funds, such Company Warrantholder’s portion of the Warrant Payments less such Company Warrantholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Company Warrants (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to Company Warrants) as soon as reasonably practicable, but in any event, no later than five Business Days following the Closing and surrender to the Paying Agent of any documents required hereunder (including obtain an executed Warrant Termination Agreementclosing and proration statement from each of Seller and Buyer (and Seller and Buyer each hereby agree to deliver the same to Seller), pursuant to Section 1.1(d) and subject to the terms of this Agreement.;
(vb) At or prior to the Closing, Acquirer shall deposit with Optimal Plus, Inc. (USA) (the "U.S. Subsidiary") an amount of cash sufficient to make the U.S. Optionholder Payments, and shall thereafter cause the U.S. Subsidiary to pay to each U.S. Optionholder the applicable U.S. Optionholder Payment less such U.S. Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such U.S. Optionholder Payments, through the U.S. Subsidiary’s payroll system in accordance with standard payroll practices, including any required withholding for applicable Taxes, as soon as reasonably practicable, but in any event, no later than five Business Days following surrender to the Acquirer of any date all undated documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder); provided, however, that with respect to holders of Company Options who are not Company Employees, references to the payroll system of the U.S. Subsidiary shall mean through the accounting services of such entity.
(vi) At or prior to the Closing, Acquirer shall deposit with the 102 Trustee (subject to the terms of an escrow agreement to be agreed upon prior to Closing between the 102 Trustee, Acquirer and the Shareholders’ Agent), an amount of cash sufficient to pay the Option Cash Right Payment. At the Closing, Acquirer will instruct the 102 Trustee to pay to each Company Optionholder who holds In the Money Unvested Company Options, at the applicable vesting date of such Unvested Company Options (and with respect to In the Money Unvested Company Options held by U.S. Optionholders, thorough the payroll system of the U.S. Subsidiary), by wire transfer of same-day funds, such Company Optionholder’s portion of the Option Cash Right Payment less (A) such Company Optionholder’s portion of the Adjustment Escrow Amount, the Indemnity Escrow Amount and the Shareholders’ Agent Expense Amount in respect of such Unvested Company Options and (B) the amount, if any, of the Company Loan Amount owed to the Company by such Company Optionholder (provided that such payments shall be subject to Section 1.1(f) regarding provisions related to 102 Company Options and 3(i) Company Options), as soon as reasonably practicable, but in any event, no later than five Business Days following the applicable vesting date and surrender to the 102 Trustee of any documents required hereunder (including an executed Option Cancellation Agreement by such Company Optionholder) pursuant to Section 1.1(c) and subject to the terms of this Agreement. Any amounts forfeited from Option Cash Right Payment and not added to the Indemnity Escrow Fund, as required under Section 1.1(c)(ii), shall be released to Acquirer.
(vii) At the Closing, the Paying Agent shall make payment of the Transaction Expenses remaining unpaid at the Closing (other than those that will be paid by the Company following the Closing) and the Repaid Company Debt as of the Closing in order to discharge the amounts payable thereunder.Date;
(viiic) Notwithstanding complete all blanks in all documents deposited with Escrow Holder which are intended to be completed by Escrow Holder on the other provisions of this ARTICLE 1, Closing Date;
(d) cause to be recorded the Grant Deed deposited with Escrow Holder by Seller;
(e) deliver to or at the Closingdirection of Seller by wire transfer or other similarly expeditious means the Purchase Price less Seller's share of the Escrow Costs, the Paying Agent shall deposit with cost of the Shareholders’ Agent $200,000 Title Policy, any prorations or credits, and the Brokerage Commissions, if payable;
(f) deliver to O'▇▇▇▇▇▇▇, A▇▇▇▇▇ Company and The Overland Company checks in the "Shareholders’ Agent Expense Amount"), which shall be deemed amount of the Brokerage Commissions provided Seller has first instructed Escrow Holder in writing to pay the Brokerage Commissions;
(g) cause to be withheld from recorded the consideration otherwise payable at Deed of Trust and deliver the Closing Note to each Indemnifying Party in accordance Seller;
(h) deliver to Buyer a conformed copy of the Grant Deed deposited with each Indemnifying Party’s Pro Rata Share thereof. The Shareholders’ Agent Expense Amount shall be used Escrow Holder by the Shareholders’ Agent: Seller;
(i) deliver to Buyer the original B▇▇▇ of Sale, an original Assignment and an original closing and proration statement;
(j) deliver to Seller an original Assignment and an original closing and proration statement; and
(k) deliver to the respective counsel for the payment parties listed in Section 8.03 hereof copies of expenses incurred by it in performing its duties in accordance with Section 9.7 all other documents and supplementary escrow instructions required by, or (ii) as otherwise determined by the Advisory Group (the "Shareholders’ Agent Expense Fund")made pursuant to, this Agreement.
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Sources: Purchase and Sale Agreement (Arvida JMB Partners L P Ii)