Common use of Payment of Deferred Consideration Clause in Contracts

Payment of Deferred Consideration. (a) Subject to Section 2.6(c), Seller shall be eligible to receive an amount of consideration equal to 20% of the Final Purchase Price as compensation (the “Deferred Consideration”), which shall be paid (or issued, as applicable) in the installments and on the dates set forth below (each such installment, a “Deferred Consideration Installment,” and each such installment date, a “Deferred Consideration Installment Date”), in each case, by either or any combination of, as determined in Parent’s sole discretion, (1) a wire transfer of immediately available funds to the account(s) designated by Seller in the Estimated Closing Statement (or such other account(s) as Seller may designate to Buyer in writing at least five (5) Business Days prior to the applicable Deferred Consideration Installment Date) or (2) the issuance by Parent of an aggregate number of shares of Parent Common Stock (rounded to the nearest whole share) equal to (x) the amount of the applicable Deferred Consideration Installment being paid in Parent Common Stock divided by (y) the closing price per share of Parent Common Stock on the Nasdaq Capital Market, or any other national securities exchange on which the shares of Parent Common Stock are then traded, on the last trading day immediately prior to the applicable Deferred Consideration Installment Date: (i) an amount equal to fifty percent (50%) of the Deferred Consideration shall be paid (or issued, as applicable) within five (5) Business Days following the first anniversary of the Closing Date; (ii) an amount (the “Second Deferred Consideration Installment”) equal to (x) fifty percent (50%) of the Deferred Consideration multiplied by (y) the quotient obtained by dividing (A) the total number of calendar days following the Closing Date through December 31, 2026 (the “Second Deferred Consideration Installment Date”) by (B) the total number of calendar days following the Closing Date through the second anniversary of the Closing Date (the “Third Deferred Consideration Installment Date”), which such amount shall be paid (or issued, as applicable) on the Second Deferred Consideration Installment Date; and (iii) an amount equal to (x) fifty percent (50%) of the Deferred Consideration less (y) the Second Deferred Consideration Installment, which such amount shall be paid (or issued, as applicable) within five (5) Business Days following the Third Deferred Consideration Installment Date. (b) All such Parent Common Stock comprising any Deferred Consideration (if any) shall be issued by Parent to Seller in book entry form and contain or be subject to the applicable restrictive legends set forth in Exhibit D. Notwithstanding anything to the contrary herein, to the extent that any issuance of Deferred Consideration Shares would require stockholder approval under Nasdaq Listing Rule 5635(a) and such approval has not been obtained, in lieu of issuing such Deferred Consideration Shares, Parent shall elect to pay such portion of the Deferred Consideration in cash in accordance with this Section 2.6. If Parent issues any shares of Parent Common Stock as Deferred Consideration (“Deferred Consideration Shares”), upon receipt of a Representation Letter (as defined below) in connection with each such issuance, as may be reasonably requested by ▇▇▇▇▇▇, and subject to Seller’s compliance with the provisions and requirements of Rule 144 promulgated under the Securities Act (“Rule 144”), Parent agrees to assist Seller to remove the restrictive legend from such Deferred Consideration Shares upon request, including (i) authorizing and directing, within ten (10) days of Parent’s receipt of the Representation Letter, Parent’s transfer agent to remove the restrictive legends, (ii) obtaining a legal opinion from Parent’s authorized counsel at Parent’s expense, which shall occur within ten (10) days of Parent’s receipt of the Representation Letter, and (iii) cooperating and communicating with Seller, its broker and the transfer agent to clear such Deferred Consideration Shares of restriction as soon as reasonably practicable. In connection with any such legend removal, Seller shall provide Parent any such information that Parent, its transfer agent or it counsel deems reasonably necessary to determine that the legend is no longer required under the Securities Act or applicable state laws, including (if applicable) a certification (x) that Seller is not an Affiliate of Parent (and a covenant to inform Parent if it should thereafter become an Affiliate and to consent to the notation of an appropriate restriction) and (y) regarding the length of time the Deferred Consideration Shares have been held (it being understood that Rule 144(d)(3)(iii) shall apply to any Deferred Consideration Shares) (any such certification, a “Representation Letter”). If, at the time any Deferred Consideration Shares are issued to Seller and such Deferred Consideration Shares are not eligible for resale pursuant to Rule 144 without volume or manner-of-sale restrictions, Parent shall use its commercially reasonable efforts to register such Deferred Consideration Shares for resale under the Securities Act (the “Registration Rights”) as soon as reasonably practicable. For the avoidance of doubt, Parent shall have no obligation to register, and Seller shall have no Registration Rights with respect to, any Deferred Consideration Shares if, upon issuance to Seller, such shares are eligible for resale pursuant to Rule 144 without volume or manner-of-sale restrictions. (c) If the Shortfall Amount (if any) is satisfied pursuant to Section 2.4(d), the aggregate Deferred Consideration eligible for payment to Seller pursuant to Section 2.6(a) shall be increased by an amount equal to twenty percent (20%) of the absolute value of the Shortfall Amount. For the avoidance of doubt, it is the intent of this Section 2.6(c) to adjust the Deferred Consideration, in the event Seller is required to pay Buyer a Shortfall Amount, such that the aggregate consideration eligible to be paid to Seller in accordance with Section 2.2(a) is equal to the Final Purchase Price. (d) Notwithstanding the foregoing, upon (i) the termination of the employment of any Guarantor, in each case who is employed by the Company (or an Affiliate thereof) pursuant to an Employment Agreement (an “Employed Guarantor”), for Cause (as such term is defined in such Employed Guarantor’s Employment Agreement) pursuant to Section 9(d) of such Employed Guarantor’s Employment Agreement or (ii) the voluntary resignation from employment from the Company (or any Affiliate thereof) by any Employed Guarantor pursuant to Section 9(f) of such Employed Guarantor’s Employment Agreement, the amount of any then unpaid (or unissued, as applicable) Deferred Consideration Installment that would otherwise be eligible for future payment (or future issuance, as applicable) pursuant to this Section 2.6 shall be reduced by an amount equal to such Employed Guarantor’s Pro Rata Percentage of such Deferred Consideration Installment.”

Payment of Deferred Consideration. Within fifteen (a15) Subject days after the final determination of the September Enrollment Schedule, if such final determination would require Buyer to pay the Deferred Consideration pursuant to Section 2.6(c2.9(a), Seller shall be eligible to receive an amount of consideration equal to 20% of the Final Purchase Price as compensation (the “Deferred Consideration”), which Consideration shall be paid (or issued, as applicable) in the installments and on the dates set forth below (each such installment, a “Deferred Consideration Installment,” and each such installment date, a “Deferred Consideration Installment Date”), in each case, by either or any combination of, as determined in Parent’s sole discretion, (1) a wire transfer of immediately available funds to the account(s) designated by Seller in the Estimated Closing Statement (or such other account(s) as Seller may designate to Buyer in writing at least five (5) Business Days prior to the applicable Deferred Consideration Installment Date) or (2) the issuance by Parent of an aggregate number of shares of Parent Common Stock (rounded to the nearest whole share) equal to (x) the amount of the applicable Deferred Consideration Installment being paid in Parent Common Stock divided by (y) the closing price per share of Parent Common Stock on the Nasdaq Capital Market, or any other national securities exchange on which the shares of Parent Common Stock are then traded, on the last trading day immediately prior to the applicable Deferred Consideration Installment Datefollows: (i) an In the event the Closing Meritas Purchase Price Adjustment has been finalized pursuant to Section 2.7 at the time the Deferred Consideration is payable, (A) if there is a Meritas Purchase Price Adjustment Surplus, the Buyer shall distribute the full amount equal of the Deferred Consideration to fifty the Paying Agent for distribution in accordance with Section 2.10 and (B) if there is a Meritas Purchase Price Adjustment Deficit, the Buyer may off-set or set-off the amount of such Meritas Purchase Price Adjustment Deficit against the Deferred Consideration and pay any remainder of the Deferred Consideration to the Paying Agent for distribution in accordance with Section 2.10; or (ii) In the event the Closing Meritas Purchase Price Adjustment has not been finalized pursuant to Section 2.7, at the time the Deferred Consideration is payable, the Sellers’ Representative may elect (A) for the Buyer (I) to pay eighty percent (5080%) of the Deferred Consideration shall be paid (or issued, as applicable) within five (5) Business Days following the first anniversary of the Closing Date; (ii) an amount (the “Second Deferred Consideration Installment”) equal to (x) fifty percent (50%) of the Deferred Consideration multiplied by (y) the quotient obtained by dividing (A) the total number of calendar days following the Closing Date through December 31, 2026 (the “Second Deferred Consideration Installment Date”) by (B) the total number of calendar days following the Closing Date through the second anniversary of the Closing Date (the “Third Deferred Consideration Installment Date”), which such amount shall be paid (or issued, as applicable) on the Second Deferred Consideration Installment Date; and (iii) an amount equal to (x) fifty percent (50%) of the Deferred Consideration less (y) the Second Deferred Consideration Installment, which such amount shall be paid (or issued, as applicable) within five (5) Business Days following the Third Deferred Consideration Installment Date. (b) All such Parent Common Stock comprising any Deferred Consideration (if any) shall be issued by Parent to Seller in book entry form and contain or be subject to the applicable restrictive legends set forth in Exhibit D. Notwithstanding anything to the contrary herein, to the extent that any issuance of Deferred Consideration Shares would require stockholder approval under Nasdaq Listing Rule 5635(a) and such approval has not been obtained, in lieu of issuing such Deferred Consideration Shares, Parent shall elect to pay such portion of the Deferred Consideration in cash Paying Agent for distribution in accordance with this Section 2.6. If Parent issues any shares of Parent Common Stock as Deferred Consideration (“Deferred Consideration Shares”), upon receipt of a Representation Letter (as defined below) in connection with each such issuance, as may be reasonably requested by ▇▇▇▇▇▇, and subject to Seller’s compliance with the provisions and requirements of Rule 144 promulgated under the Securities Act (“Rule 144”), Parent agrees to assist Seller to remove the restrictive legend from such Deferred Consideration Shares upon request, including (i) authorizing and directing, within ten (10) days of Parent’s receipt of the Representation Letter, Parent’s transfer agent to remove the restrictive legends2.10, (iiII) obtaining a legal opinion from Parent’s authorized counsel at Parent’s expense, which shall occur within ten (10) days of Parent’s receipt of hold the Representation Letter, and (iii) cooperating and communicating with Seller, its broker and the transfer agent to clear such Deferred Consideration Shares of restriction as soon as reasonably practicable. In connection with any such legend removal, Seller shall provide Parent any such information that Parent, its transfer agent or it counsel deems reasonably necessary to determine that the legend is no longer required under the Securities Act or applicable state laws, including (if applicable) a certification (x) that Seller is not an Affiliate of Parent (and a covenant to inform Parent if it should thereafter become an Affiliate and to consent to the notation of an appropriate restriction) and (y) regarding the length of time the Deferred Consideration Shares have been held (it being understood that Rule 144(d)(3)(iii) shall apply to any Deferred Consideration Shares) (any such certification, a “Representation Letter”). If, at the time any Deferred Consideration Shares are issued to Seller and such Deferred Consideration Shares are not eligible for resale pursuant to Rule 144 without volume or manner-of-sale restrictions, Parent shall use its commercially reasonable efforts to register such Deferred Consideration Shares for resale under the Securities Act (the “Registration Rights”) as soon as reasonably practicable. For the avoidance of doubt, Parent shall have no obligation to register, and Seller shall have no Registration Rights with respect to, any Deferred Consideration Shares if, upon issuance to Seller, such shares are eligible for resale pursuant to Rule 144 without volume or manner-of-sale restrictions. (c) If the Shortfall Amount (if any) is satisfied pursuant to Section 2.4(d), the aggregate Deferred Consideration eligible for payment to Seller pursuant to Section 2.6(a) shall be increased by an amount equal to remaining twenty percent (20%) of the absolute value Deferred Consideration (the “Leftover Earnout”) as collateral for any off-set or set-off contemplated Section 2.7(f)(ii)(B) and (III) after the Closing Purchase Price Adjustment has been finalized pursuant to Section 2.7, distribute to the Paying Agent any remainder of the Shortfall Leftover Earnout after giving effect to the exercise of such right of set-off or off-set for any Meritas Purchase Price Adjustment Deficit or (B) for the Sellers’ Representative to deliver a guarantee in form reasonably acceptable to the Buyer to maintain a minimum excess cash balance of $5,000,000 with LMPS in lieu of the Leftover Earnout (the “Guaranteed Amount”), which cash would be used by the Sellers’ Representative to pay to Buyer the amount of any Meritas Closing Purchase Price Deficit that Buyer would otherwise be able to set-off or off-set against the Leftover Earnout promptly (and in any event within five (5) Business Days) the determination that such amount is payable. For the avoidance of doubt, it is the intent of this Section 2.6(c) to adjust the Deferred Consideration, in the event Seller is required the final determination of the September Enrollment Schedule would not require Buyer to pay Buyer the Deferred Consideration pursuant to Section 2.9(a), and there is a Shortfall AmountMeritas Purchase Price Adjustment Deficit, then the amount of such that the aggregate consideration eligible to Meritas Purchase Price Adjustment Deficit shall be paid to Seller in accordance with Section 2.2(a) is equal to the Final Purchase Price. (d) Notwithstanding the foregoing, upon (i) the termination of the employment of any Guarantor, in each case who is employed by the Company (or an Affiliate thereof) pursuant to an Employment Agreement (an “Employed Guarantor”), for Cause (as such term is defined in such Employed Guarantor’s Employment Agreement) pursuant to Section 9(d) of such Employed Guarantor’s Employment Agreement or (ii) the voluntary resignation from employment Buyer from the Company (or any Affiliate thereof) by any Employed Guarantor pursuant to Section 9(f) of such Employed Guarantor’s Employment Agreement, the amount of any then unpaid (or unissued, as applicable) Deferred Consideration Installment that would otherwise be eligible for future payment (or future issuance, as applicable) pursuant to this Section 2.6 shall be reduced by an amount equal to such Employed Guarantor’s Pro Rata Percentage of such Deferred Consideration InstallmentEscrow Account.”

Payment of Deferred Consideration. (a) Subject to Section 2.6(c2.6(b), Seller shall be eligible to receive an amount of consideration equal to 20% of the Final Purchase Price as compensation (the “Deferred Consideration”)) in two equal installments of 10% of the Final Purchase Price (each, which a “Deferred Consideration Installment”) on the applicable Deferred Consideration Anniversary in accordance with this Section 2.6. If payable, the first Deferred Consideration Installment shall be paid (or issued, as applicable) in within five (5) Business Days of the installments first anniversary of the Closing Date, and on the dates set forth below second Deferred Consideration Installment shall be paid (or issued, as applicable) within five (5) Business Days of the second anniversary of the Closing Date (each such installmentanniversary, a “Deferred Consideration Installment,” and each such installment date, a “Deferred Consideration Installment DateAnniversary”), in each case, by either or any combination of, as determined in Parent’s sole discretion, (1i) a wire transfer of immediately available funds to the account(s) designated by Seller in the Estimated Closing Statement (or such other account(s) as Seller may designate to Buyer in writing at least five (5) Business Days prior to the applicable Deferred Consideration Installment DateAnniversary) or (2ii) the issuance by Parent of an aggregate number of shares of Parent Common Stock (rounded to the nearest whole share) equal to (x) the amount of the applicable Deferred Consideration Installment being paid in Parent Common Stock divided by (y) the closing price per share of Parent Common Stock on the Nasdaq Capital Market, or any other national securities exchange on which the shares of Parent Common Stock are then traded, on the last trading day immediately prior to the applicable Deferred Consideration Installment Date: (i) an amount equal to fifty percent (50%) of the Deferred Consideration shall be paid (or issued, as applicable) within five (5) Business Days following the first anniversary of the Closing Date; (ii) an amount (the “Second Deferred Consideration Installment”) equal to (x) fifty percent (50%) of the Deferred Consideration multiplied by (y) the quotient obtained by dividing (A) the total number of calendar days following the Closing Date through December 31, 2026 (the “Second Deferred Consideration Installment Date”) by (B) the total number of calendar days following the Closing Date through the second anniversary of the Closing Date (the “Third Deferred Consideration Installment Date”), which such amount shall be paid (or issued, as applicable) on the Second Deferred Consideration Installment Date; and (iii) an amount equal to (x) fifty percent (50%) of the Deferred Consideration less (y) the Second Deferred Consideration Installment, which such amount shall be paid (or issued, as applicable) within five (5) Business Days following the Third Deferred Consideration Installment Date. (b) Anniversary. All such Parent Common Stock comprising any Deferred Consideration (if any) shall be issued by Parent to Seller in book entry form and contain or be subject to the applicable restrictive legends set forth in Exhibit D. Notwithstanding anything to the contrary herein, to the extent that any issuance of Deferred Consideration Shares would require stockholder approval under Nasdaq Listing Rule 5635(a) and such approval has not been obtained, in lieu of issuing such Deferred Consideration Shares, Parent shall elect to pay such portion of the Deferred Consideration in cash in accordance with this Section 2.6. If Parent issues any shares of Parent Common Stock as Deferred Consideration (“Deferred Consideration Shares”), upon receipt of a Representation Letter (as defined below) in connection with each such issuance, as may be reasonably requested by ▇▇▇▇▇▇, and subject to Seller’s compliance with the provisions and requirements of Rule 144 promulgated under the Securities Act (“Rule 144”), Parent agrees to assist Seller to remove the restrictive legend from such Deferred Consideration Shares upon request, including (i) authorizing and directing, within ten (10) days of Parent’s receipt of the Representation Letter, Parent’s transfer agent to remove the restrictive legends, (ii) obtaining a legal opinion from Parent’s authorized counsel at Parent’s expense, which shall occur within ten (10) days of Parent’s receipt of the Representation Letter, and (iii) cooperating and communicating with Seller, its broker and the transfer agent to clear such Deferred Consideration Shares of restriction as soon as reasonably practicable. In connection with any such legend removal, Seller shall provide Parent any such information that Parent, its transfer agent or it counsel deems reasonably necessary to determine that the legend is no longer required under the Securities Act or applicable state laws, including (if applicable) a certification (x) that Seller is not an Affiliate of Parent (and a covenant to inform Parent if it should thereafter become an Affiliate and to consent to the notation of an appropriate restriction) and (y) regarding the length of time the Deferred Consideration Shares have been held (it being understood that Rule 144(d)(3)(iii) shall apply to any Deferred Consideration Shares) (any such certification, a “Representation Letter”). If, at the time any Deferred Consideration Shares are issued to Seller and such Deferred Consideration Shares are not eligible for resale pursuant to Rule 144 without volume or manner-of-sale restrictions, Parent shall use its commercially reasonable efforts to register such Deferred Consideration Shares for resale under the Securities Act (the “Registration Rights”) as soon as reasonably practicable. For the avoidance of doubt, Parent shall have no obligation to register, and Seller shall have no Registration Rights with respect to, any Deferred Consideration Shares if, upon issuance to Seller, such shares are eligible for resale pursuant to Rule 144 without volume or manner-of-sale restrictions. (cb) If the Shortfall Amount (if any) is satisfied pursuant to Section 2.4(d), the aggregate Deferred Consideration eligible for payment to Seller pursuant to Section 2.6(a) shall be increased by an amount equal to twenty percent (20%) of the absolute value of the Shortfall Amount. For the avoidance of doubt, it is the intent of this Section 2.6(c2.6(b) to adjust the Deferred Consideration, in the event Seller is required to pay Buyer a Shortfall Amount, such that the aggregate consideration eligible to be paid to Seller in accordance with Section 2.2(a) is equal to the Final Purchase Price. (dc) Notwithstanding the foregoing, upon (i) the termination of the employment of any Guarantor, in each case who is employed by the Company (or an Affiliate thereof) pursuant to an Employment Agreement (an “Employed Guarantor”), for Cause (as such term is defined in such Employed Guarantor’s Employment Agreement) pursuant to Section 9(d) of such Employed Guarantor’s Employment Agreement or (ii) the voluntary resignation from employment from the Company (or any Affiliate thereof) by any Employed Guarantor pursuant to Section 9(f) of such Employed Guarantor’s Employment Agreement, the amount of any then unpaid (or unissued, as applicable) Deferred Consideration Installment that would otherwise be eligible for future payment (or future issuance, as applicable) pursuant to this Section 2.6 shall be reduced by an amount equal to such Employed Guarantor’s Pro Rata Percentage of such Deferred Consideration Installment.”