Post-Closing Payments. (i) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below. (ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than five (5) Business Days after the final determination of the Post-Closing Adjustment Amount pursuant to this Section 1.4, pay the Post-Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, to (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata Portion.
Appears in 1 contract
Post-Closing Payments. (i) If After the Post-Closing Adjustment Amount Date, Parent shall pay or cause to be paid to each Stockholder that delivered a completed and duly executed letter of transmittal substantially in the form attached hereto as finally determined pursuant Exhibit D, and as further modified to this address such additional changes as may be reasonably requested by Parent’s transfer agent (each, a “Letter of Transmittal”) and all applicable Certificates for cancellation (or an affidavit of lost Certificate as contemplated by Section 1.4 is negative 2.9(g)) to Parent on or prior to the Closing Date, with respect to each such Stockholder holding Outstanding Common Shares, (A) as soon as possible following the absolute value of Closing and in any event not later than the second (2nd) Business Day after the Closing Date, such negative amountStockholder’s applicable Closing Cash Consideration and (B) as soon as possible following the Closing and in any event not later than the fifth (5th) Business Day after the Closing Date, the “Post-such Stockholder’s applicable Closing Deficit”)Stock Consideration (validly issued, then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment fully paid and nonassessable and free of any Post-Liens other than restrictions on transfer under applicable state and federal securities laws) and cash in lieu of any fractional shares of Parent Common Stock (otherwise payable as Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis Stock Consideration) in an amount equal to the Adjustment Escrow Amount by product of (A) such fraction and (B) the amount Deemed Stock Value; provided that if the Closing VWAP is less than 90% of the Post-Initial Deemed Stock Value, Parent shall have the right to substitute for the Closing Deficit andStock Consideration (and any cash in lieu of fractional shares) cash in an amount equal to (x) such Stockholder’s Applicable Share Amount multiplied by 0.225, to the extent the Adjustment Escrow Amount is insufficient, reduced by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance (y) such Stockholder’s Applicable Percentage of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) belowAmount.
(ii) If From and after the Post-Closing, Parent shall promptly (and in any event, with respect to Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amountStock Consideration, the “Post-Closing Increase”), then Parent shall, no later than within five (5) Business Days after receipt, and with respect to Closing Cash Consideration, within two (2) Business Days after receipt) pay or cause to be paid to each other Stockholder not paid pursuant to Section 2.9(b)(i) that delivers a completed and duly executed Letter of Transmittal and all applicable Certificates for cancellation (or an affidavit of lost Certificate as contemplated by the final Letter of Transmittal) to Parent at any time after the Closing Date, the consideration (without interest) that would have been payable to such Stockholder pursuant to Section 2.9(b)(i) if such Stockholder had delivered such documents on or prior to the Closing Date. Any other payments (including payments of any Final Adjustment Surplus) to be made to the Stockholders following the Closing shall be made to the Representative for the benefit of such Stockholder.
(iii) Additionally, as soon as possible following the Closing and in any event not later than the fifth (5th) Business Day after the Closing Date, Parent shall deposit with the Escrow Agent, on behalf of the Stockholders, the Escrowed Stock Consideration, to be held and disbursed by the Escrow Agent in accordance with the Escrow Agreement; provided that if Parent exercises its right under Section 2.9(b)(i) to pay cash in lieu of delivering Closing Stock Consideration, Parent (in lieu of depositing the Escrowed Stock Consideration) shall, no later than the second (2nd) Business Day after the Closing Date, deposit cash with the Escrow Agent in an amount equal to the Escrow Amount. For purposes hereof, the Escrowed Stock Consideration and any stock dividends paid on the Escrowed Stock Consideration prior to the Escrow Termination Date and any cash amounts substituted for Escrowed Stock Consideration prior to the Escrow Termination Date shall be referred to as the “Escrow Fund” and held by the Escrow Agent until the Escrow Termination Date, unless earlier disbursed in accordance with this Section 2.9(b)(iii). The Escrow Fund shall serve as the sole and exclusive source of payment of adjustments to the Closing Merger Consideration required by Section 2.11 and the indemnification obligations of the Stockholders set forth in Article X.
(iv) The Escrow Fund shall be disbursed by the Escrow Agent as follows: (A) from time to time prior to the Final Release Date, the Escrow Fund shall be disbursed by the Escrow Agent to Parent to the extent required to satisfy adjustments to the Closing Merger Consideration required by Section 2.11 or indemnification obligations under Article X; provided, however, that such disbursements shall be made by the Escrow Agent only upon receipt of (x) joint written instructions executed by Parent and the Representative or (y) a Final Award, in each case directing the Escrow Agent to make such disbursement; (B) on the Final Release Date, the entire remaining balance of the Escrow Fund less any amounts reasonably required to satisfy pending but unresolved indemnification claims (a “Pending Claim Amount”) shall be disbursed by the Escrow Agent to the Representative in the manner specified in the Escrow Agreement and (C) after the Final Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Parent or as specified by the Representative (on behalf of the Stockholders), as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Parent and the Representative or (y) a Final Award, in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein.
(v) At any time following the Closing Date, the Representative shall have the right to elect to:
(A) cause the Escrow Agent to sell in a market transaction a portion or all of the Escrowed Stock Consideration then held in the Escrow Fund;
(B) after the determination of the Post-Closing Final Adjustment Amount and payment of the Final Adjustment Surplus or Final Adjustment Deficiency, as applicable, withdraw from the Escrow Fund the Escrowed Stock Consideration or cash proceeds thereof so long as cash in the sum of at least $100,000,000, less any amounts previously disbursed pursuant to clause (A) of Section 2.9(b)(iv), remains in the Escrow Fund after such withdrawal; and
(C) in connection with any disbursement of the Escrow Fund contemplated by clause Section 2.9(b)(iv) above, (x) disburse to the recipient shares of Escrowed Stock Consideration having an aggregate Disbursement Deemed Value equal to the amount that the recipient is entitled to receive pursuant to this Agreement, or (y) pay to the recipient in immediately available funds the amount that the recipient is entitled to receive pursuant to this Agreement, to the extent that the Escrow Fund has cash or cash equivalents. Parent agrees to execute joint written instructions as requested by the Representative in order to effect any of the actions described in Section 1.42.9(b)(v)(A) or 2.9(b)(v)(B).
(vi) As used herein, pay the Post-Closing Increase date as of which all Escrowed Stock Consideration and cause other amounts constituting the Escrow Fund have been paid out by the Escrow Agent is referred to release as the Adjustment “Escrow Amount, to (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionTermination Date.”
Appears in 1 contract
Sources: Merger Agreement (Ecolab Inc)
Post-Closing Payments. (i) If The Total Merger Consideration, calculated based on (i) the Post-amount of Closing Adjustment Amount Cash, (ii) the amount of Closing Debt, (iii) the amount of Transaction Expenses, and (iv) the amount (if any) by which Closing Net Working Capital exceeds or is less than the Estimated Closing Net Working Capital, each as finally determined deemed final and binding on the parties pursuant to this Section 1.4 2.12, is negative (the absolute value of such negative amount, referred to herein as the “Post-Closing DeficitFinal Total Merger Consideration”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive amount of the Final Total Merger Consideration exceeds the amount of the Estimated Total Merger Consideration (such excess amount, the “Post-Closing IncreasePositive Adjustment Amount”), then Parent shallthen, no later than within five (5) Business Days after the final determination of the Post-Closing Adjustment Amount Final Merger Consideration pursuant to this Section 1.42.12, pay Parent shall deposit or shall cause to be deposited with the Post-Closing Increase and cause Escrow Agent Shareholder Representative, by wire transfer of immediately available funds, an amount in cash equal to release the portion of the Positive Adjustment Escrow Amount, to (1) the Payment Agent for further distribution pro rata to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, Shareholders in accordance with each Company Indemnitorsuch holder’s respective Pro Rata PortionShare and the Shareholder Representative and Parent shall issue a joint written instruction to the Escrow Agent instructing the Escrow Agent to promptly (but in any event within five (5) Business Days) release, from the Purchase Price Adjustment Escrow Fund, the then balance of the Purchase Price Adjustment Escrow Fund, in immediately available funds, to an account or accounts designated by the Shareholders in writing.
(iii) If the amount of the Estimated Total Merger Consideration exceeds the amount of the Final Total Merger Consideration (the “Negative Adjustment Amount”), then within five (5) Business Days after the determination of the Final Merger Consideration pursuant to Section 2.12, the Shareholder Representative and Parent shall issue a joint written instruction to the Escrow Agent instructing the Escrow Agent to promptly (but in any event within five (5) Business Days) release, from the Purchase Price Adjustment Escrow Fund (A) the Negative Adjustment Amount, in immediately available funds, to an account or accounts designated by Parent in writing and (B) the resulting remaining balance of the Purchase Price Adjustment Escrow Fund, in immediately available funds, to an account or accounts designated by the Shareholders in writing. To the extent that the Negative Adjustment Amount is greater than the Purchase Price Adjustment Escrow Fund, Parent shall have the right to demand payment of such excess from either the Indemnification Escrow Fund or the Shareholders, jointly and severally.
(iv) Any payment made under this Section 2.12, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Merger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Northwest Pipe Co)
Post-Closing Payments. No later than three (i3) If Business Days prior to the Post-Closing Adjustment Amount Date, Seller shall prepare and deliver to Buyer a schedule showing the TTM GRJ TO Share as finally determined pursuant of the last day of the calendar month immediately prior to this Section 1.4 is negative the Closing Date and the number of Baseline Locations in existence as of the date thereof (the absolute value of such negative amount, “TO Share Schedule” with the accounting methods and conventions used in the preparation thereof being referred to as the “Post-Closing DeficitAccounting Conventions”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(iia) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than Within five (5) Business Days after following the final determination One-Year Payment Date, Buyer shall prepare and deliver to Seller (x) a schedule calculating the One-Year Payment Offset, including a description of each payment made and identifying the agreement or Incentive Program section pursuant to which such payment was made and (y) a TO Share Schedule calculating: (i) the TTM GRJ TO Share as of the PostOne-Closing Adjustment Year Payment Date, as reported on the SciGames Reports for all Company Establishments prepared in accordance with the Accounting Conventions, and (ii) the Average Net Win Per Machine Per Day for each Company Establishment that is a Baseline Location as of the One-Year Payment Date. In the event that the TTM GRJ TO Share as of the One-Year Payment Date is at least $19 million, then Buyer shall pay to Seller an amount equal to (A) the One-Year Payment Amount pursuant minus (B) the One-Year Payment Amount Offset within thirty (30) days of the One-Year Payment Date. In the event that the TTM GRJ TO Share as of the One-Year Payment Date is less than $19 million, then Buyer shall have no obligation to this Section 1.4, pay the PostOne-Closing Increase Year Payment Amount and cause Escrow Agent to release the Adjustment Escrow Amount, to One-Year Payment Amount shall be deemed forfeited.
(1b) Within ten (10) Business Days following the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and two (2) year anniversary of the Surviving Corporation Closing, Buyer shall prepare and deliver to Seller a schedule showing the number of Baseline Locations as of such two-year anniversary (the “Baseline Location Schedule”).
(c) Within five (5) Business Days following the Three-Year Payment Date, Buyer shall prepare and deliver to Seller (x) a schedule calculating the Three-Year Payment Offset, including a description of each payment made and identifying the agreement or Incentive Program section pursuant to which such payment was made and (y) a TO Share Schedule calculating: (i) the TTM GRJ TO Share as of the Three-Year Payment Date, as reported on the SciGames Reports for further distribution through the Surviving Corporations payroll processing system to the all Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, Establishments prepared in accordance with the Accounting Conventions, and (ii) the Average Net Win Per Machine Per Day for each Company Indemnitor’s respective Pro Rata PortionEstablishment that is a Baseline Location as of the Three-Year Payment Date. In the event that the TTM GRJ TO Share as of the Three-Year Payment Date is at least $19 million, then Buyer shall pay to Seller an amount equal to (A) the Three-Year Payment Amount minus (B) the Three-Year Payment Amount Offset within thirty (30) days of the Three-Year Payment Date. In the event that the TTM GRJ TO Share as of the Three-Year Payment Date is less than $19 million, then Buyer shall have no obligation to pay the Three-Year Payment Amount and the Three-Year Payment Amount shall be deemed forfeited.
(d) Each of the One-Year Payment Amount and the Three-Year Payment Amount shall be paid by wire transfer of immediately available funds to the account or accounts designated by Seller (or its successors, if applicable) in writing to Buyer at least two (2) Business Days prior to the date of the One-Year Payment Date or the Three-Year Payment Date, as applicable.
(e) In the event Buyer assigns or transfers any Use Agreement with a Company Establishment prior to the One-Year Payment Date or the Three-Year Payment Date, as applicable, then applicable TO Share Schedule shall include the Net Terminal Income for such Company Establishment during the twelve full calendar month period prior to the occurrence of such transfer. In the event Buyer voluntarily terminates any Use Agreement with (or otherwise voluntarily removes its Video Gaming Terminals from) a Company Establishment that is not an Underperforming Establishment, then the applicable TO Share Schedule shall include the Net Terminal Income generated by such Company Establishment during the twelve full calendar month period prior to the occurrence of such termination (or removal of Video Gaming Terminals). The TO Share Schedule shall not include Net Terminal Income after the date of termination: (i) with respect to Use Agreements that have been terminated as a result of the Company Establishment electing to not renew its Use Agreement with the Company and/or Buyer (or an Affiliate of Buyer) or the voluntary or involuntary closure of the Company Establishment by the owner of such Company Establishment, or (ii) generated by an Underperforming Establishment.
(f) Each TO Share Schedule and Baseline Location Schedule delivered by Buyer to Seller shall be accompanied by a certificate of the chief financial officer of Buyer attesting to the accuracy and completeness of such schedule.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Accel Entertainment, Inc.)
Post-Closing Payments. (ia) If the Post-Closing The Final Adjustment Amount shall be determined as finally determined pursuant to this Section 1.4 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in subsections (b) and (c) of this Section 8.32.5. If there remains the Final Adjustment Amount is a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against number, then Buyer shall pay such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Final Adjustment Amount as finally determined pursuant in cash to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than AIC or its designee within five (5) Business Days after the final determination of thereof. If the Post-Closing Final Adjustment Amount is a negative number, then AIC shall pay (or cause the other Seller Parties to pay) the absolute value of such Final Adjustment Amount to Buyer in cash within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 1.42.5(a) shall (i) be made by wire transfer of immediately available funds to an account designated in writing by the receiving party and (ii) include interest on the amount required to be paid at the Applicable Rate, pay compounded annually on the Post-basis of a year of 365 days, from (and including) the Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, Date to (1but excluding) the Payment Agent for further distribution date such payment is made.
(b) No later than ninety (90) days after the Closing Date, AIC shall deliver to Buyer (i) a statement (the Company Indemnitors who were holders “Final Adjustment Statement”) setting forth the balance sheets of Company Capital Stock, Vested Company Options which were Non-Employee Company Options the Companies as of the Closing Date prepared in a form consistent with the form of the Reference Balance Sheet and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with the Accounting Principles, after giving effect to the Pre-Sale Restructuring Transactions but not the Pre-Sale Additional Transactions or the Specified Closing Transactions (the “Subject Balance Sheet”), and setting forth in reasonable detail AIC’s calculation of the Closing Statutory Value and the Final Adjustment Amount based thereon, and (ii) reasonable supporting documentation with respect to the calculation of the amounts set forth on the Final Adjustment Statement.
(c) Buyer shall have ninety (90) days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of Closing Statutory Value and the Final Adjustment Amount based thereon (as may be tolled in accordance with this Section 2.5(c), the “Review Period”). In furtherance of such review, the Seller Parties shall provide Buyer and its Representatives with reasonable access to the employees and Representatives of the Seller Parties and their Affiliates responsible for and knowledgeable about the information set forth in the Final Adjustment Statement and the Subject Balance Sheet (including the Chief Financial Officer of Allstate Investments) and to the documentation, records and other information of the Seller Parties and their Affiliates related to the preparation or contents of the Final Adjustment Statement and the Subject Balance Sheet as Buyer or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of the Seller Parties or their Affiliates; provided, further, that no such requests may be made by Buyer or its Representatives on or after such time as the remaining duration of the Review Period is five (5) Business Days or less. The Review Period shall be tolled pending reasonable satisfaction of Buyer’s reasonable requests, subject to the foregoing provisions of this Section 2.5(c), in the event that the Seller Parties do not provide Buyer with access to such documentation, records or other relevant information or access to such individuals within (x) ten (10) Business Days of Buyer’s request (if such request is made within the first ten (10) days of the Review Period), or (y) five (5) Business Days of Buyer’s request (if such request is made after the first ten (10) days of the Review Period).
(i) If Buyer disagrees with the Final Adjustment Statement (including any amount or computation set forth therein) in any respect and on any basis, Buyer may, on or prior to the last day of the Review Period, deliver a notice to AIC setting forth, in reasonable detail, each Company Indemnitordisputed item or amount and the basis for Buyer’s disagreement therewith (the “Dispute Notice”). The Dispute Notice shall set forth, with respect to each disputed item, Buyer’s position as to the correct amount or computation that should have been included in the Final Adjustment Statement and as to the Final Adjustment Amount. The parties acknowledge and agree that the “Initial Premium” adjustment process under Section 3.1 of the ALNY Reinsurance Agreement will occur concurrently with the Purchase Price adjustment process under this Section 2.5 and the Final Closing Statutory Value shall be determined on the basis of the “Initial Premium” as finally determined and paid by ALNY thereunder. Accordingly, notwithstanding the foregoing, the Final Closing Statutory Value and Final Adjustment Amount shall not be finally determined until such adjustment process has been completed in accordance with Section 3.1 of the ALNY Reinsurance Agreement, and the Independent Accounting Firm engaged pursuant to Section 2.5(c)(iii) shall be directed to take into account the “Initial Premium” to the extent relevant to a Dispute Notice hereunder.
(ii) If no Dispute Notice is delivered to AIC with respect to any item in the Final Adjustment Statement on or prior to the last day of the Review Period, the amount or computation with respect to such item as set forth in the Final Adjustment Statement shall be deemed accepted by Buyer, whereupon the amount or computation of such item or items shall be final and binding on the parties.
(iii) For a period of ten (10) Business Days beginning on the date that AIC receives a Dispute Notice, if any, Buyer and AIC shall endeavor in good faith to resolve by mutual agreement all matters identified in the Dispute Notice. In the event that the parties are unable to resolve by mutual agreement any matter in the Dispute Notice within such ten (10) Business Day period, Buyer or AIC may engage PriceWaterhouse Coopers LLP, or if PriceWaterhouse Coopers LLP is unwilling or unable to serve, another accounting firm of national reputation, as mutually agreed by the parties hereto (the “Independent Accounting Firm”), to make a determination with respect to all matters in dispute.
(iv) Buyer and AIC will direct the Independent Accounting Firm to render a determination within thirty (30) Business Days after its retention, and Buyer, AIC and their respective Pro Rata Portionemployees and agents will cooperate with the Independent Accounting Firm during its engagement. Buyer, on the one hand, and AIC, on the other hand, shall promptly (and in any event within ten (10) Business Days) after the Independent Accounting Firm’s engagement each submit to the Independent Accounting Firm their respective computations of the disputed items identified in the Dispute Notice and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other party. Each party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other party in such other party’s initial submission, which supplemental information shall be submitted to the Independent Accounting Firm (with a concurrent copy thereof to the other party) within five (5) Business Days after the first date on which both parties have submitted their respective initial submissions to the Independent Accounting Firm. The Independent Accounting Firm shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall reasonably cooperate and shall cause their Representatives to reasonably cooperate with such requests of the Independent Accounting Firm, and shall provide a concurrent copy of any such information so provided to the Independent Accounting Firm to the other party. The Independent Accounting Firm shall determine, based solely on the materials so presented by the parties and upon information received in response to such requests for additional or clarifying information and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report to Buyer and AIC (the “Adjustment Report”) in which the Independent Accounting Firm shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the amounts and computations set forth in the Final Adjustment Statement solely as to the disputed items and shall determine the appropriate Final Adjustment Amount on that basis.
(v) Buyer and AIC shall instruct the Independent Accounting Firm to set forth in the Adjustment Report, in reasonable detail, the Independent Accounting Firm’s determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to the Final Adjustment Statement, together with supporting calculations. In resolving any disputed item, the Independent Accounting Firm (A) shall be bound to the principles of this Section 2.5 and the terms of this Agreement, including whether the Final Adjustment Statement was prepared in accordance with the Accounting Principles, (B) shall limit its review to matters specifically set forth in the Dispute Notice and (C) shall not assign a value to any item higher than the highest value for such item claimed by either party or less than the lowest value for such item claimed by either party.
(vi) All fees and expenses relating to the work of the Independent Accounting Firm shall be shared equally by Buyer and AIC. The Adjustment Report, absent Fraud or manifest error, shall be final and binding upon Buyer and AIC, and shall be deemed a final arbitration award that is binding on each of Buyer and AIC, and no party shall seek further recourse to courts, other tribunals or otherwise, other than to enforce the Adjustment Report.
(vii) The final form of the balance sheets of the Companies as of the Effective Time as finally determined pursuant to this Section 2.5 is referred to herein as the “Final Balance Sheet” and the amount of the Closing Statutory Value calculated therefrom is referred to as the “Final Closing Statutory Value.” Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 2.5 represent the sole and exclusive method for determining the Final Balance Sheet and the Final Closing Statutory Value.
(d) As a further adjustment to the Purchase Price, the parties shall comply with the provisions set forth on Annex B.
(e) The Seller Parties and Buyer agree to treat all payments (other than interest on a payment) made by either of them under this Section 2.5 and under other indemnity provisions of this Agreement as adjustments to the Purchase Price for Tax purposes and that such treatment shall govern for purposes hereof to the extent permissible under Applicable Law.
Appears in 1 contract
Post-Closing Payments. (a) The following adjustments will be made with respect to the transactions contemplated by the Coinsurance Agreement based on the amounts set forth on the Final Statement of Net Settlement:
(i) If if the Post-Closing Adjustment Estimated Total Net Settlement Amount exceeds the Total Net Settlement Amount as finally determined pursuant to this Section 1.4 is negative (reflected on the absolute value Final Statement of such negative amountNet Settlement, the “Post-Closing Deficit”)Reinsurer shall, then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount within ten Business Days of the Post-Closing Deficit anddetermination thereof, transfer or cause to be transferred to the Ceding Company (which may be by transfer from the Trust Accounts to the extent permitted pursuant to the Adjustment Escrow Amount is insufficientCoinsurance Agreement and Trust Agreements) an amount of cash equal to such excess, together with interest thereon from and including the date on which the Closing Date falls to but not including the date of such transfer computed at the Closing Interest Rate, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount wire transfer of immediately available funds, to an account or accounts designated by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.Ceding Company;
(ii) If if the Post-Closing Adjustment Total Net Settlement Amount as finally determined reflected on the Final Statement of Net Settlement exceeds the Estimated Total Net Settlement Amount, the Ceding Company shall, within ten Business Days of the determination thereof, transfer to the Reinsurer an amount of cash equal to such excess, together with interest thereon from and including the date on which the Closing Date falls to but not including the date of such transfer computed at the Closing Interest Rate, by wire transfer of immediately available funds, to an account or accounts designated by the Reinsurer;
(iii) if the aggregate Fair Market Value of the Transferred Assets as reflected on the Final Statement of Net Settlement exceeds the aggregate Fair Market Value of the Transferred Assets as reflected on the Estimated Statement of Net Settlement, the Reinsurer shall, within ten Business Days of the determination thereof, transfer or cause to be transferred to the Ceding Company (which may be by transfer from the Trust Accounts to the extent permitted pursuant to this Section 1.4 is positive the Coinsurance Agreement and Trust Agreements) an amount of cash equal to such excess, together with interest thereon from and including the Closing Date to but not including the date of such transfer computed at the Closing Interest Rate, by wire transfer of immediately available funds; and
(such amountiv) if the aggregate Fair Market Value of the Transferred Assets as reflected on the Estimated Statement of Net Settlement exceeds the aggregate Fair Market Value of the Transferred Assets as reflected on the Final Statement of Net Settlement, the “Post-Closing Increase”), then Parent Ceding Company shall, no later than five (5) within ten Business Days after the final determination of the Post-determination thereof, transfer to the Reinsurer an amount of cash equal to such excess, together with interest thereon from and including the Closing Adjustment Amount pursuant Date to this Section 1.4but not including the date of such transfer computed at the Closing Interest Rate, pay the Post-Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amountby wire transfer of immediately available funds, to (1) an account or accounts designated by the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionReinsurer.
Appears in 1 contract
Post-Closing Payments. (i) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 Final Cash Consideration is negative less than the Estimated Cash Consideration (the absolute value of such negative amountdifference, the “Post-Closing Deficit”), then Buyer and Holdco shall deliver, and in no event later than two Business Days following the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment date of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance determination of the Post-Closing Deficit, and joint written instructions to the Escrow Agent instructing the Escrow Agent to release (A) to Buyer, the Post-Closing Deficit, unless the Post-Closing Deficit is equal to or greater than the Adjustment Escrow Amount, in each which case such case the parties shall jointly joint written instructions will instruct the Escrow Agent to pay release the full Adjustment Escrow Amount to Buyer, and (B) to Holdco, any remaining Adjustment Escrow Funds after first distributing the Post-Closing Deficit to Buyer in full accordance with Subsection (A) hereof (such remaining amount, the “Post-Closing Deficit Shortfall”), and the Sellers shall not be entitled to Parent out receive, and hereby automatically, and with no further action required on their part forever waive and discharge any rights in or to, all or a portion, as applicable, of the Adjustment Escrow Fund and/or Indemnity Escrow FundAmount with an aggregate value equal to the Post-Closing Deficit. For avoidance of doubt, (1) reduction and payments out of If the Adjustment Escrow Fund and Amount is insufficient to cover the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any entire Post-Closing Deficit Deficit, then each Holder shall promptly, and (2) any recovery in no event later than five Business Days following the date of determination of the Post-Closing Deficit, pay such Holder’s Pro Rata Portion of the amount of the shortfall to Buyer in cash by wire transfer of immediately available funds to an account designated by Buyer. Buyer may recover any such Post-Closing Deficit shall not Shortfall by withholding or setting off against the any Earnout Payment due to be subject paid pursuant to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below1.4.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 Final Cash Consideration is positive greater than the Estimated Cash Consideration (such amountdifference, the “Post-Closing Increase”), then Parent shallBuyer shall promptly, and in no event later than five (5) two Business Days after following the final date of determination of the Post-Closing Adjustment Amount pursuant to this Section 1.4Increase, (A) pay the Post-Closing Increase to Holdco and cause (B) simultaneously therewith, Buyer and Holdco shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release the full Adjustment Escrow AmountFunds to Holdco, and Buyer shall not be entitled to (1) receive, and hereby automatically, and with no further action required on its part, forever waives and discharges any rights in or to, all of the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionAdjustment Escrow Funds.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Regis Corp)
Post-Closing Payments. (ia) If the Post-Closing The Final Adjustment Amount shall be determined as finally determined pursuant to this Section 1.4 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in subsections (b) and (c) of this Section 8.32.5. If there remains the Final Adjustment Amount is a positive balance to the number, then Buyer shall pay such Final Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than Seller or its designee within five (5) Business Days after the final determination of thereof. If the Post-Closing Final Adjustment Amount is a negative number, then Seller shall pay the absolute value of such Final Adjustment Amount to Buyer within five Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 1.42.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, pay compounded annually on the Post-basis of a year of 365 days, from (and including) the Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, Date to (1but excluding) the Payment Agent for further distribution date such payment is made.
(b) No later than 90 days after the Closing Date, Buyer shall deliver to Seller: (i) a statement (the “Final Adjustment Statement”) setting forth the balance sheet of the Company Indemnitors who were holders as of Company Capital Stock, Vested Company Options which were Non-Employee Company Options the Closing Date prepared in good faith from the Books and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, Records in accordance with each the Accounting Principles, consistently applied (the “Subject Balance Sheet”) and showing Buyer’s calculations of (A) the Closing Statutory Value, (B) the Recapture Adjustment Amount and (C) the Final Adjustment Amount based on (A) and (B); and (ii) reasonable supporting documentation with respect to the calculation of the amounts set forth in the Final Adjustment Statement. Seller shall, during such period of no longer than 90 days after the Closing Date, provide Buyer and the Company Indemnitor’s respective Pro Rata Portionand their Representatives with reasonable access to the employees of Seller to the extent such employees have knowledge about the Company Business and to all documentation, records and other information of the Company or Seller, as Buyer, the Company or any of their Representatives may reasonably request and that are necessary to facilitate the preparation of the Final Adjustment Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Seller and that such access and cooperation shall not, in the event of any dispute arising out of this Agreement, serve to prejudice Seller or any of its Affiliates.
(c) (i) Seller shall have 45 days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of (A) the Closing Statutory Value, (B) the Closing Recapture Adjustment Amount, and (C) the Final Adjustment Amount based on (A) and (B) (the “Review Period”). In furtherance of such review, Buyer and the Company shall provide Seller and its Representatives with reasonable access during such 45 day period to the employees of Buyer and the Company (including to the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and the Company as Seller or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or the Company and that such access and cooperation shall not, in the event of any dispute arising out of this Agreement, serve to prejudice Buyer or any of its Affiliates.
Appears in 1 contract
Post-Closing Payments. 4.9.1 The Purchaser may perform an audit of the Closing Management Accounts at its own cost after Closing and notify the Seller if there is any objection to the Closing Management Accounts (iand the calculation of Working Capital derived therefrom) within 180 days after Closing. The accounting firm conducting such audit shall be agreed between the Parties (acting reasonably), and shall be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG. If no such notice is given by the Purchaser, the Closing Management Accounts shall be deemed to be conclusive and binding on the Parties for the purposes of this Agreement. If the Post-Closing Adjustment Amount as finally determined pursuant Purchaser does deliver a notice of objection to this Section 1.4 is negative (the absolute value of such negative amountSeller, the “Post-Closing Deficit”), then Parties shall use their best commercial endeavours to promptly resolve any objections raised and confirm in writing between them the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, agreed closing management accounts within fifteen (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than five (515) Business Days after the final determination Seller's receipt of the Post-Closing Adjustment Amount pursuant Purchaser's notice of objection. If the Parties are unable to this Section 1.4agree the closing management accounts within fifteen (15) Business Days after the receipt by the Seller of the notice of objection from the Purchaser, pay the Post-Closing Increase and cause Escrow Agent to release Parties shall as soon as reasonably practicable jointly appoint an international professional accounting firm other than the Adjustment Escrow Amountaccounting firm who conducted the initial audit on behalf of the Purchaser but provided that such international professional accounting firm shall still be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG, to (1) the Payment Agent for further distribution make a determination in relation to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options items in dispute and Company Warrants determine the closing management accounts within twenty (20) Business Days after its appointment and (2) such costs shall be borne equally between the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, Parties. Any closing management accounts agreed in accordance with each Company Indemnitorthis Clause 4.9.1 or determined by the international professional accounting firm shall be conclusive and binding on the Parties (barring manifest error) and become the agreed closing management accounts (the "Agreed Closing Management Accounts").
4.9.2 The Working Capital shall be derived from the Closing Management Accounts where no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, or if such objection is made, it shall be derived from the Agreed Closing Management Accounts.
4.9.3 If the Working Capital is a negative number, then the Seller shall credit by telegraphic transfer or other electronic means for same day value to the Purchaser's Account an amount equal to the deficit of the Working Capital below zero as a reduction in the Purchase Price, provided that such deficit is equal to or more than US$100,000.
4.9.4 If the Working Capital is a positive number then the Purchaser shall credit by telegraphic transfer or such other means for same day value to the Seller’s respective Pro Rata PortionAccount an amount equal to the excess of the Working Capital over zero as an increase in the Purchase Price, provided that such excess is equal to or more than US$100,000.
4.9.5 Any payment made under Clause 4.9.3 or Clause 4.9.4 shall be made:
(i) if no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, on the next Business Day thereafter; or
(ii) if an objection to the Closing Management Accounts is made under Clause 4.9.1, on or before the fifth (5) Business Day after the date on which the Agreed Closing Management Accounts are determined as provided under Clause 4.9.1.
Appears in 1 contract
Sources: Share Purchase Agreement (CAESARS ENTERTAINMENT Corp)
Post-Closing Payments. (i) If Upon the Postfinal determination of (A) the Company Third-Party Expenses, Company Transaction Expenses and Parent Transaction Expenses, (B) the Unpaid Pre-Closing Taxes, (C) the Closing Indebtedness, (D) the Adjusted Net Equity Adjustment Amount as and (E) the amount of any Excess Company Bridge Amount pursuant to this Section 1.8:
(A) if the Total Consideration calculated using the amounts finally determined pursuant to this Section 1.4 1.8 is negative greater than the Total Consideration calculated using the amounts set forth in the Closing Statement (the absolute value of difference between such negative amountamounts, the “Post-Closing DeficitAdjustment Excess”), then the Company Indemnitors Stockholders shall owe be entitled to receive such Post-Closing Adjustment Excess from Parent under this Section 1.8(e);
(B) if the Total Consideration calculated using the amounts set forth in the Closing Statement is less than the Total Consideration calculated using the amounts finally determined pursuant to this Section 1.8 (the difference between such amounts, the “Post-Closing Adjustment Deficit”), then Parent shall be entitled to receive such Post-Closing Adjustment Deficit from the Company Stockholders under this Section 1.8(e); and
(C) if the Total Consideration calculated using the amounts set forth in the Closing Statement is equal to the Total Consideration calculated using the amounts finally determined pursuant to this Section 1.8, then no payments shall be made pursuant to this Section 1.8(e).
(ii) Within five (5) Business Days after the determinations set forth in clause (i) of this Section 1.8(e), either (A) Parent shall, in the event there is a Post-Closing Adjustment Excess, deposit or shall cause to be deposited with the Paying Agent, by wire transfer of immediately available funds, an amount in cash equal to the Post-Closing Deficit. Payment of any Adjustment Excess, which shall be payable to the Company Stockholders in accordance with Section 1.7; or (B) Parent and the Escrow Representative shall, in the event there is a Post-Closing Deficit shall comeAdjustment Deficit, first, by reducing on provide a dollar-for-dollar basis joint written instruction to the Adjustment Escrow Amount by the Agent to deliver an amount of in cash equal to the Post-Closing Adjustment Deficit andfrom the Escrow Fund, which shall be deemed to be deducted from the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance portion of the Post-Closing Deficit, and in Escrow Fund attributable to each Company Stockholder based on such case the parties shall jointly instruct the holder’s Pro Rata Escrow Agent to pay the Post-Closing Deficit in full to Parent out Portion of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out any recovery of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Adjustment Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the Sections 7.3(a) or (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) belowb).
(iiiii) If the Post-Closing Adjustment Amount as finally determined pursuant to Any payment made under this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than five (5) Business Days after the final determination of the Post-Closing Adjustment Amount pursuant to this Section 1.4, pay the Post-Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount1.8, to (1) the Payment Agent maximum extent permitted by applicable Law, shall be treated for further distribution all Tax purposes as an adjustment to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionTotal Consideration.
Appears in 1 contract
Post-Closing Payments. (a) The date on which both of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Amount shall be used to adjust the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentences, “Final Adjustment Amount”). In the event that the sum of (i) If the Post-Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent shall pay to the Paying Agent, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Adjustment Date and ending on the date of payment. In the event that the sum of (x) the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount as finally determined pursuant less the Final Debt Amount is a negative number, then the Stockholders’ Representative and Parent shall direct the escrow agent maintaining the Escrow Account to this Section 1.4 is negative (pay Parent an amount equal to the absolute value of such negative amountnumber, together with interest earned thereon. Any required payment shall be made by Parent or the escrow agent (at the direction of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination Date, in immediately available funds by wire transfer to, in the case of the Equityholders, the “Post-Closing Deficit”)Paying Agent and, then in the Company Indemnitors shall owe case of Parent, such bank account or accounts as Parent may specify. At the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount time of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance payment of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than five (5) Business Days after the final determination of the Post-Closing Final Adjustment Amount pursuant to this Section 1.43.05, the balance of the Escrow Account shall be paid to the Paying Agent for distribution by the Paying Agent to the Equityholders in accordance with their respective Equityholder’s Percentages. If the funds held pursuant to the Escrow Agreement are not sufficient to pay the Post-Closing Increase and cause Escrow Agent to release the Final Adjustment Escrow Amount, then Parent shall have the right to setoff and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall (plus interest accruing on such amount from the Closing Date to the payment date at an annual rate of 5%); provided that no party shall have any other right of setoff for any reason whatsoever against the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital StockFinal Adjustment Amount as set forth in Section 3.05(a), Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through FIRPTA Amount, the Surviving Corporations payroll processing system to 280G Amounts and the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options409A Amounts as set forth in Section 3.06, and (3) the LC Amount and the Non-Releasing Equityholder Indemnity Amount as set forth in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionSection 6.11 .
Appears in 1 contract
Sources: Merger Agreement (Foster L B Co)
Post-Closing Payments. (i) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 1.3 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors Seller shall owe be obligated to pay Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall comebe paid to Parent, (A) first, by reducing on a dollar-for-dollar basis from the Adjustment Escrow Amount by Fund (and not later than five Business Days following such final determination Parent and Seller shall provide a joint written instruction to the Escrow Agent to deliver to Parent an amount in cash equal to the amount of the Post-Closing Deficit andfrom the Adjustment Escrow Fund or, if the Post-Closing Deficit is greater than the Adjustment Escrow Fund, an amount in cash equal to the entire Adjustment Escrow Fund) and (B) second, to the extent that the Post-Closing Deficit is greater than the Adjustment Escrow Amount is insufficientFund, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance excess amount of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of over the Adjustment Escrow Fund and/or Indemnity Escrow Fundfrom Seller. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below6.3.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 1.3 is positive (such amount, the “Post-Closing IncreaseSurplus”), then Parent shall, no shall pay Seller the Post-Closing Surplus by wire transfer of immediately available funds to the account designated in writing by Seller for such purpose not later than five (5) Business Days after following such designation.
(iii) If, following the final determination of the Post-Closing Adjustment Amount pursuant to this Section 1.41.3 and any payments that may be required pursuant to Section 1.3(e)(i), pay the Post-Closing Increase Adjustment Escrow Fund has not been exhausted, not later than 10 Business Days following such final determination Parent and cause Seller shall provide a joint written instruction to the Escrow Agent to release deliver to Seller any amounts remaining in the Adjustment Escrow Amount, to (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionFund.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (TrueCar, Inc.)
Post-Closing Payments. (ia) If the Post-Closing The Final Adjustment Amount shall be determined as finally determined pursuant to this Section 1.4 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in subsections (b) and (c) of this Section 8.32.5. If there remains the Final Adjustment Amount is a positive balance to the number, then Buyer shall pay such Final Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than Seller or its designee within five (5) Business Days after the final determination of thereof. If the Post-Closing Final Adjustment Amount is a negative number, then Seller shall pay the absolute value of such Final Adjustment Amount to Buyer within five Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 1.42.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, pay compounded annually on the Post-basis of a year of 365 days, from (and including) the Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, Date to (1but excluding) the Payment Agent for further distribution date such payment is made.
(b) No later than 90 days after the Closing Date, Buyer shall deliver to Seller (i) a statement (the “Final Adjustment Statement”) setting forth (A) the balance sheet of the Company Indemnitors who were holders as of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, Closing Date prepared in accordance with each the Accounting Principles, consistently applied, after giving effect to the Restructuring and the other transactions contemplated by this Agreement to be effected at or prior to the Closing (the “Subject Balance Sheet”) and showing Buyer’s calculation of the Closing Statutory Value based thereon, (ii) a written certificate of the chief financial officer of Buyer certifying that the Subject Balance Sheet was prepared in accordance with the Accounting Principles, consistently applied, and setting forth in reasonable detail Buyer’s calculation of the Final Closing Statutory Value and the Final Adjustment Amount based thereon and (iii) supporting documentation with respect to the calculation of the amounts set forth on the Final Adjustment Statement. Between the date hereof and the date on which the Final Adjustment Statement is delivered pursuant to this Section 2.5(b), Seller shall provide Buyer and its Representatives with reasonable access, during normal business hours, upon reasonable advance notice to Seller, to the employees of Seller (including the chief financial officer of Seller) who are primarily responsible for the preparation of the Estimated Balance Sheet and to documentation, records and other information relating thereto to the extent reasonably necessary to facilitate Buyer’s ability to prepare the Final Adjustment Statement after the Closing Date (including reasonable access to all work papers of the accountants who compiled or reviewed the Estimated Balance Sheet, subject to Buyer entering into a reasonable customary undertaking required by Seller’s accountants in connection therewith in form and substance reasonably acceptable to such accountants).
(c) (i) Seller shall have 45 days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of Closing Statutory Value and the Final Adjustment Amount based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company Indemnitor’s respective Pro Rata Portionshall provide Seller and its Representatives with full access to the employees of Buyer and the Company (including to the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and the Company as Seller or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (CNO Financial Group, Inc.)
Post-Closing Payments. (ia) If On or prior to the Post-sixty (60)-month anniversary of the Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is negative Date (the absolute value of such negative amount, the “Post-Closing DeficitDeferred Cash Payment Date”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit andBuyer will pay to Seller or, to the extent designated by Seller in writing and in accordance with Section 3.11, to the Adjustment Escrow Amount Members in accordance with their respective Pro Rata Percentages, the remaining 50.0% of the Closing Cash Consideration, as finally determined in accordance with Section 3.4 (the “Deferred Cash Payment”), via wire transfer to the Seller’s Bank Account or the Member Bank Accounts, as applicable.
(b) The Deferred Cash Payment (as may be reduced by a prepayment in accordance with this Section 3.3(b)) will bear simple interest at a rate of 12.0% per annum, which interest will be payable in arrears on the first day of each calendar month (“Interest Payments”). All Interest Payments will be made by Buyer via wire transfer to the Seller’s Bank Account. Notwithstanding anything to the contrary herein, the Deferred Cash Payment may be prepaid in part or in full to Seller at any time prior to the Deferred Cash Payment Date, in which case (i) the amount of interest due on the date of such prepayment will be calculated based on the number of days elapsed in the applicable month and (ii) any subsequent Interest Payment (if the Deferred Cash Payment is insufficientprepaid in part rather than in whole) will be adjusted based on the remaining, unpaid amount of the Deferred Cash Payment. Any partial payments will go first toward accrued but unpaid Interest Payments and then to the remaining, unpaid amount of the Deferred Cash Payment.
(c) Payment of the Deferred Cash Payment and Interest Payments shall be secured by the assets of Parent and Buyer on the terms, and subject to the conditions, of a security agreement in substantially the form attached as Exhibit A to this Agreement (the “Security Agreement”). Such security interest will be pari passu with the security interests granted under Security Agreements of substantially similar form entered into with the other Sellers (as defined in that certain Omnibus Amendment No. 2, dated as of December 17, 2020, by reducing and among Buyer, Parent and each signatory thereto designated as a seller (the “Second Omnibus Amendment”)), and such security interest shall constitute a first priority security interest in all of the right title and interest in and to all presently existing and hereafter acquired Buyer Collateral as defined in the Security Agreement) and a security interest on Parent Collateral (as defined in the Security Agreement) which will be subordinated to any security interests granted to Dye Capital & Company LLC or its affiliate for indebtedness in a dollar-for-dollar basis principal amount not to exceed $5,000,000 multiplied by the Indemnity Pro Rata Base Price Amount (as defined in Section 7 of the Second Omnibus Amendment.
(d) Within three (3) Business Days of the expiration of the Escrow Amount Period, the Escrow Agent shall release to Seller or, to the extent designated by Seller in writing and in accordance with Section 3.11, to the Members, in accordance with their respective Pro Rata Percentages, and pursuant to the terms of the Escrow Agreement, the balance of the Post-Closing Deficit, and Indemnity Escrow Shares in each the Escrow Account which are not the subject of a dispute on or following the expiration of the Escrow Period. Any Indemnity Escrow Shares subject to such case a dispute shall not be released to Seller or the parties shall jointly instruct Members until such dispute is finally resolved. The fees of the Escrow Agent to pay the Postshall be paid one-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, half (11/2) reduction by Seller and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Postone-Closing Deficit and half (21/2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) belowby Buyer.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than five (5) Business Days after the final determination of the Post-Closing Adjustment Amount pursuant to this Section 1.4, pay the Post-Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, to (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata Portion.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Post-Closing Payments. (ia) If the Post-Closing Adjustment Final Merger Consideration Amount as finally determined pursuant to this Section 1.4 1.14 is negative less than the Estimated Merger Consideration Amount, the Securityholder Representative and Parent shall deliver to the Escrow Agent joint written instructions to pay to Parent the amount of such difference no later than three (3) Business Days after the determination of such Final Merger Consideration Amount by wire transfer of immediately available funds out of the Escrow Fund.
(b) If the Final Merger Consideration Amount as finally determined pursuant to Section 1.14 is greater than the Estimated Merger Consideration Amount, Parent and the Securityholder Representative shall, no later than three (3) Business Days after the determination of such Final Merger Consideration Amount, recalculate the Series A-1 Consideration, Series A-2 Consideration, Series A-3 Consideration, Series A-4 Consideration, Common Consideration and Option Consideration on the basis of the Final Merger Consideration Amount and the Final Per Share Common Consideration (the absolute value amount of such negative amountexcess for each Participating Securityholder, the “Post-Closing DeficitExcess Amount”), then . No later than three (3) Business Days after the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount recalculation required by the amount of the Post-Closing Deficit andpreceding sentence, Parent shall (i) pay to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, Paying and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Exchange Agent for further distribution to the Company Indemnitors who were holders of Stockholders the aggregate Excess Amount payable to such Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants Stockholders and (2ii) pay to the Surviving Corporation for further distribution to the Vested Optionholders through the Surviving Corporation’s payroll processing system and accounts payable processes the aggregate Excess Amount payable to the Company Indemnitors who were holders of such Vested Company Options which were Employee Company Options in accordance with the same Optionholders.
(c) The procedures set forth in Section 1.4(e)(iiSections 1.13, 1.14 and 1.15 shall be the sole and exclusive remedy of the Indemnified Parties (as hereinafter defined) below.
for any Losses (iias hereinafter defined) If in respect of the Post-calculation of the Final Merger Consideration Amount, including the Final Closing Cash, Final Closing Indebtedness, Final Unpaid Company Transaction Expenses and Final Closing Working Capital (and Final Closing Working Capital Adjustment Amount as finally determined pursuant to Amount); provided, however, that this Section 1.4 1.15(c) is positive (such amount, not intended to and shall not in any manner limit the “Post-Closing Increase”), then Parent shall, no later than five (5) Business Days after the final determination obligations of the Post-Closing Adjustment Amount pursuant Participating Securityholders to this Section 1.4, pay indemnify the Post-Closing Increase and cause Escrow Agent to release Indemnified Parties for Losses in respect of the Adjustment Escrow Amount, to Indemnifiable Matters (1as hereinafter defined) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2set forth in Sections 7.2(a)(v) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata Portionor 7.2(a)(vi) hereof.
Appears in 1 contract
Sources: Merger Agreement (Lifelock, Inc.)
Post-Closing Payments. (i) If the Post-Closing Adjustment Amount Total Consideration as finally determined pursuant to this Section 1.4 is negative greater than the estimated Total Consideration contained in the Estimated Closing Statement (the absolute value amount of such negative amountdifference, the “Post-Closing DeficitAdjustment Amount”), no later than four (4) Business Days after the final Total Consideration has been determined, then Parent shall deposit or shall cause to be deposited with the Payment Agent, an amount of cash and a number of shares of Parent Class A Common Stock, for payment to such Stockholders and holders of Company Indemnitors shall owe Parent Options and Company Warrants in accordance with the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis additional amounts that each such holder would have received had the Adjustment Amount been included in the Total Consideration at the time of Closing (such amounts, the “Adjustment Consideration”). For the avoidance of doubt, the Adjustment Consideration shall be paid fifty percent (50%) in cash and fifty percent (50%) in shares of Parent Class A Common Stock (valued at the Parent Trading Price).
(ii) If the Total Consideration as finally determined pursuant to this Section 1.4 is less than the estimated Total Consideration contained in the Estimated Closing Statement, then Parent shall deduct from the Escrow Amount by an amount in cash and stock equal to the amount of such deficit, which shall be deducted from Stockholders and holders of Company Options and Company Warrants in accordance with the Post-amount that such holders would have not received had such deficit been reduced from the Total Consideration at the time of Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and (it being understood that such reduction shall not be in each accordance with such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fundholder’s Pro Rata Portions). For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2x) any recovery of any such Post-Closing Deficit deficit from the Escrow Amount shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to 9.3 and (y) any amount deducted from the Adjustment Escrow Amount following shall be deducted fifty percent (50%) in cash and fifty percent (50%) in shares of Parent Class A Common Stock (valued at the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) belowParent Trading Price).
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount, the “Post-Closing Increase”), then Parent shall, no later than five (5) Business Days after the final determination of the Post-Closing Adjustment Amount pursuant to this Section 1.4, pay the Post-Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, to (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata Portion.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Square, Inc.)
Post-Closing Payments. (i) If the Post-Closing Adjustment Amount as finally is zero or if Additional Merger Consideration is determined pursuant to this Section 1.4 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount of the Post-Closing Deficit and, to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance of the Post-Closing Deficit, and in each such case the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) reduction and payments out of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options due in accordance with the same procedures set forth in Section 1.4(e)(ii) below.
(ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is positive (such amount2.8, the “Post-Closing Increase”)then, then Parent shall, no later than within five (5) Business Days after the final determination Conclusive Date, (A) the parties shall provide a joint written instruction to the Escrow Agent to deliver promptly from the Escrow Account by wire transfer to the Paying Agent, on behalf of and as agent of the Post-Closing Adjustment Stockholders (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options), an amount in cash equal to the balance in the Escrow Fund and (B) Parent shall deliver promptly by wire transfer to the Paying Agent an amount in cash equal to the Additional Merger Consideration, if greater than zero. The Paying Agent shall promptly pay to each Stockholder (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options) its applicable Per Share Portion of such amounts referenced in clauses (A) and (B) above.
(ii) If there is an Excess Amount determined to be due in accordance with this Section 2.8 that is less than or equal to the balance in the Escrow Fund then, within five (5) Business Days after the Conclusive Date, the parties shall provide a joint written instruction to the Escrow Agent to deliver promptly from the balance in the Escrow Fund by wire transfer (A) to Parent, the Excess Amount and (B) to the Paying Agent an amount in cash equal to, if greater than zero, (x) the balance in the Escrow Fund minus (y) the Excess Amount. The Paying Agent shall promptly pay the Per Share Portion of the amount referenced in clause (B) above to each Stockholder (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options).
(iii) If there is an Excess Amount determined to be due in accordance with this Section 2.8 that is greater than the balance in the Escrow Fund then, within five (5) Business Days after the Conclusive Date, (A) the parties shall provide a joint written instruction to the Escrow Agent to deliver promptly from the Escrow Account by wire transfer to Parent all the funds then in the Escrow Account and (B) each Stockholder (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options) shall, with respect to each share of Company Common Stock or Option exchanged pursuant to the Merger, pay by wire transfer to Parent the Per Share Portion of (x) the Excess Amount minus (y) the amount of the Escrow Fund transferred to Parent. For the avoidance of doubt, the respective obligations of the Stockholders (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options) to make the payment required pursuant to the foregoing clause (B) of this Section 2.8(g)(iii) shall be several and not joint. Each Letter of Transmittal delivered by a Stockholder in connection with the Merger pursuant to Section 2.6(c) shall include an agreement to be bound by this Section 2.8(g)(iii).
(iv) The Per Share Portion of the amounts, if any, payable to the Stockholders pursuant to this Section 1.4, pay 2.8(g) shall herein be referred to as the “Post-Closing Increase and cause Escrow Agent to release the Adjustment Escrow Amount, to (1) the Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionPayment”).
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Post-Closing Payments. (i) If With respect to the Post-Closing Adjustment Amount as finally determined Year 1 Calculation Date:
(A) if the Final Year 1 Cash Portion is greater than the Estimated Year 1 Cash Portion, then Buyer shall promptly (and in any event no later than five Business Days) following the determination of the Final Year 1 Cash Portion pursuant to this Section 1.4 1.8(c)(vi) pay (or cause to be paid) by Wire Transfer to Seller an amount in cash equal to the excess of the Final Year 1 Cash Portion over the Estimated Year 1 Cash Portion;
(B) if the Final Year 1 Cash Portion is negative (less than the absolute value of such negative amount, the “Post-Closing Deficit”)Estimated Year 1 Cash Portion, then Seller shall promptly (and in any event no later than five Business Days) following the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount by the amount determination of the Post-Closing Deficit and, Final Year 1 Cash Portion pursuant to Section 1.8(c)(vi) pay (or cause to be paid) by Wire Transfer to Buyer an amount in cash equal to the extent the Adjustment Escrow Amount is insufficient, by reducing on a dollar-for-dollar basis the Indemnity Escrow Amount by the balance excess of the Post-Closing Deficit, Estimated Year 1 Cash Portion over the Final Year 1 Cash Portion; and
(C) Buyer Parent shall promptly (and in each such case any event no later than five Business Days) following the parties shall jointly instruct the Escrow Agent to pay the Post-Closing Deficit in full to Parent out determination of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubtFinal Year 1 Share Portion pursuant to Section 1.8(c)(vi) deliver (or cause to be delivered) to Seller, (1) reduction and payments out evidence of the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any issuance of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance Final Year 1 Share Portion by Buyer Parent to Seller as the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Agent to pay the balance of the Adjustment Escrow Amount to the (1) Payment Agent for further distribution to the Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) belowbeneficial holder.
(ii) If With respect to the Post-Closing Adjustment Year 2 Calculation Date:
(A) if the Final Year 2 Contingent Payment Amount as finally determined pursuant to this Section 1.4 is positive greater than the Estimated Contingent Payment Amount for the Year 2 Calculation Date (such amount, the “Post-Closing IncreaseEstimated Year 2 Contingent Payment Amount”), then Parent shall, Buyer shall promptly (and in any event no later than five (5Business Days) Business Days after following the final determination of the Post-Closing Adjustment Final Year 2 Contingent Payment Amount pursuant to this Section 1.4, 1.8(c)(vii) pay (or cause to be paid) by Wire Transfer to Seller an amount in cash equal to the Post-Closing Increase and cause Escrow Agent to release excess of the Adjustment Escrow Final Year 2 Contingent Payment Amount over the Estimated Year 2 Contingent Payment Amount; and
(B) if the Final Year 2 Contingent Payment Amount is less than the Estimated Year 2 Contingent Payment Amount, then Seller shall promptly (and in any event no later than five Business Days) following the determination of the Final Year 2 Contingent Payment Amount pursuant to Section 1.8(c)(vii) pay (1or cause to be paid) the Payment Agent for further distribution by Wire Transfer to Buyer an amount in cash equal to the Company Indemnitors who were holders excess of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through Estimated Year 2 Contingent Payment Amount over the Surviving Corporations payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options, in each case, in accordance with each Company Indemnitor’s respective Pro Rata PortionFinal Year 2 Contingent Payment Amount.
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