The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date: (a) the Company and the Merger Sub shall cause each of the Agreement of Merger and the DE Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the States of California and Delaware, as applicable; (b) in accordance with Section 1.02(b) and the Allocation Schedule, the Purchaser shall pay to each Stockholder that has delivered to the Purchaser a Letter of Transmittal, an amount in cash equal to the excess of (x) the Per Share Initial Merger Consideration multiplied by the number of shares of Common Stock such Stockholder owned immediately prior to the Closing over (y) the outstanding Loan Amount (and, solely with respect to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or their successors, as Trustees of the 2003 ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust dated September 25, 2003, the outstanding Management Loan Amount), if any, payable by such Stockholder to the Company, by wire transfer of immediately available United States funds to the account(s) designated by such holder in such holder’s Letter of Transmittal; (c) immediately prior to the Effective Time, all unexercised and unexpired Options then outstanding shall be cancelled by the Company, and in accordance with Section1.02(b) and the Allocation Schedule, the Purchaser shall cause the Company to pay to each Optionholder that has delivered to the Purchaser an Option Letter of Transmittal, in consideration for the cancellation of such Options, an amount in cash equal to the excess of the Per Share Initial Merger Consideration over the exercise price of such Option multiplied by the number of shares of Common Stock for which such Option is exercisable reduced by applicable withholding tax or other amounts required to be withheld by applicable Law, by wire transfer of immediately available United States funds to the account(s) designated by such holder in such holder’s Option Letter of Transmittal. For the avoidance of doubt, in the event that the exercise price of any such cancelled Option is equal to or greater than the Per Share Initial Merger Consideration with respect to the shares of Common Stock subject to the Option, the holder of such cancelled Option shall not be entitled to receive any payment under this Section 2.02(c). Prior to the Effective Time, the Company shall take all reasonably necessary or appropriate action to effectuate the transactions contemplated by this Section 2.02(c). Payments made in respect of Options at the Closing (other than amounts contributed to the Escrow Fund) shall be treated as compensation paid by the Company to the Optionholders at the Closing. Amounts that would be payable in respect of Options that are contributed to the Escrow Fund shall be treated as compensation paid to the Optionholders if and when such amounts held in escrow are released from escrow and paid to the Optionholders; (d) the Purchaser shall deposit the Holdback Amount with the Representative, by wire transfer of immediately available United States funds to one or more bank accounts designated by the Representative; (e) the Purchaser shall deposit $1,000,000 (the “Purchase Price Adjustment Escrow Amount”) into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement; (f) the Purchaser shall deposit $31,500,000 (the “Indemnity Escrow Amount” and together with the Purchase Price Adjustment Escrow Amount, the “Escrow Amount”) into an escrow account (the “Indemnity Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement; (g) Purchaser or Merger Sub shall, or shall cause the Surviving Corporation to, deliver to each holder of Estimated Indebtedness set forth on Schedule 2.02(g), the amount necessary to satisfy such Estimated Indebtedness with the result that, immediately following the Closing, there will be no further monetary obligations of the Company with respect to any Indebtedness outstanding immediately prior to the Closing; (h) Purchaser or Merger Sub shall pay, or shall cause to be paid, to each payee owed any portion of the Estimated Transaction Costs, by wire transfer of immediately available United States funds to one or more bank accounts designated by the Company (as previously designated to the Company by each such payee), the respective amount of Estimated Transaction Costs owed to such payee; and (i) the Purchaser, the Company, and the Representative (on behalf of the Common Security Holders) shall make such other deliveries as are required by Article III hereof.
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The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) the Company and the Merger Sub shall cause each of the Agreement of Merger and the DE Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the States of California and Delaware, as applicable;.
(b) the Company shall deliver, or cause to be delivered, to Parent:
(i) a copy of the duly executed Stockholder Consent reflecting the Required Company Stockholder Approval;
(ii) a counterpart to the Escrow Agreement, duly executed by the Representative;
(iii) a duly executed certificate that satisfies the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that no interest in the Company is or has been a “United States real property interest” as defined in Section 897 of the Code during the period specified in Section 897(c)(1)(A)(ii) of the Code and a notice form that meets the requirements of Treasury Regulations Section 1.897-2(h)(2), along with written authorization for Parent to deliver such notice form to the IRS behalf of the Company upon the Closing;
(iv) a counterpart to the Registration Rights Agreement, duly executed by each Company Stockholder comprising the Required Company Stockholder Approval;
(v) a counterpart to each Employment Agreement, duly executed by the applicable Key Employee;
(vi) a counterpart to the Restricted Stock Agreement, duly executed by each Key Employee;
(vii) a copy of the duly executed D&O “tail” policy obtained pursuant to Section 5.11(b);
(viii) copies of duly executed Company SAFE Surrender Agreements in accordance with Section 1.02(b1.4; and
(ix) and one or more Payoff Letters in respect of the Allocation ScheduleDebt Payoff Amount.
(c) Parent shall:
(i) repay, or cause to be repaid, on behalf of the Company, the Purchaser shall pay Debt Payoff Amount in respect of the Specified Debt for which Payoff Letters have been delivered pursuant to each Stockholder that has delivered Section 2.2(b)(ix);
(ii) deposit, or cause to be deposited, with the Purchaser a Letter of Transmittal, Exchange Agent cash in an amount in cash equal to the excess aggregate Closing Cash Consideration allocable to Company Securityholders (less the cash amounts payable pursuant to Section 2.2(c)(iii)), any cash payable in lieu of (xfractional shares in accordance with Section 1.5(j) the Per Share Initial Merger Consideration multiplied by the number and evidence of shares in book-entry form of Parent Common Stock such Stockholder owned immediately prior to in the amount of the Closing over Stock Consideration allocable to Company Securityholders (ythe “Exchange Fund”);
(iii) the outstanding Loan Amount (and, solely with respect to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇deliver, or their successorscause to be delivered, as Trustees for the benefit of the 2003 ▇▇▇▇▇▇▇ holders of In-the-Money Options and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust dated September 25, 2003the Phantom Award Individuals, the outstanding Management Loan Amount), if any, payable by aggregate amount of cash due at the Closing in respect of such Stockholder In-the-Money Options pursuant to Sections 1.3(b) and 1.3(c) as set forth in the CompanyAllocation Certificate, by wire transfer of immediately available United States funds to the account(saccount designated in writing by the Company no less than two (2) designated by such holder in such holder’s Letter of TransmittalBusiness Days prior to the Closing Date;
(civ) immediately prior to the Effective Timedeposit, all unexercised and unexpired Options then outstanding shall be cancelled by the Company, and in accordance with Section1.02(b) and the Allocation Schedule, the Purchaser shall or cause the Company to pay to each Optionholder that has delivered to the Purchaser an Option Letter of Transmittal, in consideration for the cancellation of such Options, an amount in cash equal to the excess of the Per Share Initial Merger Consideration over the exercise price of such Option multiplied by the number of shares of Common Stock for which such Option is exercisable reduced by applicable withholding tax or other amounts required to be withheld by applicable Lawdeposited, by wire transfer of immediately available United States funds to the account(s) designated by such holder in such holder’s Option Letter of Transmittal. For the avoidance of doubt, in the event that the exercise price of any such cancelled Option is equal to or greater than the Per Share Initial Merger Consideration with respect to the shares of Common Stock subject to the Option, the holder of such cancelled Option shall not be entitled to receive any payment under this Section 2.02(c). Prior to the Effective Time, the Company shall take all reasonably necessary or appropriate action to effectuate the transactions contemplated by this Section 2.02(c). Payments made in respect of Options at the Closing (other than amounts contributed to the Escrow FundAgent (A) shall be treated as compensation paid by the Company to the Optionholders at the Closing. Amounts that would be payable in respect of Options that are contributed to the Escrow Fund shall be treated as compensation paid to the Optionholders if and when such amounts held in escrow are released from escrow and paid to the Optionholders;
(d) the Purchaser shall deposit the Holdback Amount with the Representative, by wire transfer of immediately available United States funds to one or more bank accounts designated by the Representative;
(e) the Purchaser shall deposit $1,000,000 4,000,000 (the “Purchase Price Adjustment Escrow Amount”) into an escrow account (the “Purchase Price Adjustment Escrow Account”) established as the primary source for the adjustment of the Closing Consideration pursuant to Section 1.8(b) and the terms and conditions of the Escrow Agreement;
(f) the Purchaser shall deposit $31,500,000 an escrow agreement (the “Indemnity Escrow Amount” Agreement”) by and among Parent, the Representative and BOKF, N.A. (the “Escrow Agent”), substantially in the form of Exhibit J and (B) the Unvested Option Escrow Amount (together with the Purchase Price Adjustment Escrow Amount, the “Escrow Amount”) into an in to a separate escrow account (the “Indemnity Unvested Option Escrow Account” and, together with the Adjustment Escrow Account, the “Escrow Account”) established to be distributed pursuant to the terms and conditions of the Escrow AgreementSection 1.3(c);
(gv) Purchaser or Merger Sub shalldeliver, or shall cause the Surviving Corporation to, deliver to each holder of Estimated Indebtedness set forth on Schedule 2.02(g), the amount necessary to satisfy such Estimated Indebtedness with the result that, immediately following the Closing, there will be no further monetary obligations of the Company with respect to any Indebtedness outstanding immediately prior to the Closing;
(h) Purchaser or Merger Sub shall pay, or shall cause to be paiddelivered, to each payee owed any portion of the Estimated Transaction Costs, Representative the Representative Holdback Amount by wire transfer of immediately available United States funds to one an account designated by the Representative no less than three (3) Business Days prior to the Closing Date;
(vi) pay, or more bank cause to be paid, on behalf of the Company, any unpaid Transaction Expenses by wire transfer of immediately available funds to an account or accounts designated by the Company no less than three (as previously designated 3) Business Days prior to the Company Closing Date;
(vii) a counterpart to the Registration Rights Agreement, duly executed by P▇▇▇▇▇;
(viii) a counterpart to each such payee)Employment Agreement, duly executed by P▇▇▇▇▇;
(ix) a counterpart to the respective amount of Estimated Transaction Costs owed to such payeeRestricted Stock Agreements, duly executed by P▇▇▇▇▇; and
(ix) deliver, or cause to be delivered, to the PurchaserCompany a counterpart to the Escrow Agreement, the Company, and the Representative (on behalf of the Common Security Holders) shall make such other deliveries as are required duly executed by Article III hereofP▇▇▇▇▇.
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The Closing Transactions. Subject to Upon the terms and subject to the conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
: (a) without duplication of the transfer required by Section 1.04, the Purchaser shall deliver to the Stockholder Representative (for the benefit of the Stockholders), the Merger Consideration (less any amounts contemplated to be paid through the payroll system of the Surviving Corporation pursuant to the proviso to Section 2.02(c)) by wire transfer of immediately available funds to the account or accounts designated by the Stockholder Representative to the Purchaser at least three (3) Business Days prior to the Closing Date; (b) promptly following receipt by the Stockholder Representative of such portion of the Merger Consideration pursuant to Section 2.02(a), the Company and the Merger Sub shall cause each of the Agreement of Merger and the DE Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the States State of California Delaware; (c) promptly following the later of (i) the Effective Time and Delaware(ii) the receipt by the Company from any Stockholder of the certificates representing such Stockholder’s shares of Company Stock, as applicable;
(b) in accordance with or an affidavit contemplated by Section 1.02(b) 1.04(e), and the Allocation Schedule, the Purchaser shall pay to each Stockholder that has delivered to the Purchaser a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and subject to Section 1.04, the Stockholder Representative shall pay to the Stockholder who submitted such Letter of Transmittal an amount in cash equal to the excess portion of (x) the Per Share Initial Merger Consideration multiplied by the number to which such Stockholder is entitled pursuant to Section 1.02 in respect of such shares of Common Stock Company Stock; provided that if a Stockholder is an employee of the Surviving Corporation or any of its Subsidiaries on the Closing Date, the Purchaser shall cause the Surviving Corporation to make such payment to such Stockholder owned immediately prior through the payroll system of the Surviving Corporation and its Subsidiaries promptly, but in any event within seven (7) days, after the Closing; (d) promptly following the Effective Time, the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness set forth on the Closing over (y) the outstanding Loan Amount (and, solely with respect to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or their successors, as Trustees of the 2003 ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust dated September 25, 2003, the outstanding Management Loan Amount), if any, payable by such Stockholder to the CompanyIndebtedness Schedule, by wire transfer of immediately available United States funds to the account(s) designated by such holder in such holder’s Letter of Transmittal;
(c) immediately prior to the Effective Time, all unexercised and unexpired Options then outstanding shall be cancelled by the Company, and in accordance with Section1.02(b) and the Allocation Schedule, the Purchaser shall cause the Company to pay to each Optionholder that has delivered to the Purchaser an Option Letter of Transmittal, in consideration for the cancellation holders of such Options, an amount in cash equal to the excess of the Per Share Initial Merger Consideration over the exercise price of such Option multiplied by the number of shares of Common Stock for which such Option is exercisable reduced by applicable withholding tax or other amounts required to be withheld by applicable Law, by wire transfer of immediately available United States funds to the account(s) designated by such holder in such holder’s Option Letter of Transmittal. For the avoidance of doubt, in the event that the exercise price of any such cancelled Option is equal to or greater than the Per Share Initial Merger Consideration with respect to the shares of Common Stock subject to the Option, the holder of such cancelled Option shall not be entitled to receive any payment under this Section 2.02(c). Prior to the Effective Time, the Company shall take all reasonably necessary or appropriate action to effectuate the transactions contemplated by this Section 2.02(c). Payments made in respect of Options at the Closing (other than amounts contributed to the Escrow Fund) shall be treated as compensation paid by the Company to the Optionholders at the Closing. Amounts that would be payable in respect of Options that are contributed to the Escrow Fund shall be treated as compensation paid to the Optionholders if and when such amounts held in escrow are released from escrow and paid to the Optionholders;
(d) the Purchaser shall deposit the Holdback Amount with the Representative, by wire transfer of immediately available United States funds to one or more bank accounts designated by the Representative;
Indebtedness; (e) the Purchaser shall deposit $1,000,000 (the “Purchase Price Adjustment Escrow Amount”) into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement;
(f) the Purchaser shall deposit $31,500,000 (the “Indemnity Escrow Amount” and together with the Purchase Price Adjustment Escrow Amount, the “Escrow Amount”) into an escrow account (the “Indemnity Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement;
(g) Purchaser or Merger Sub shall, or shall cause the Surviving Corporation to, deliver to each holder of Estimated Indebtedness set forth on Schedule 2.02(g), the amount necessary to satisfy such Estimated Indebtedness with the result that, immediately following the Closing, there will be no further monetary obligations of the Company with respect to any Indebtedness outstanding immediately prior to the Closing;
(h) Purchaser or Merger Sub shall pay, or shall cause to be paid, to each payee owed any portion of the Estimated Transaction Costs, by wire transfer of immediately available United States funds to one or more bank accounts designated by the Company (as previously designated to the Company by each such payee), the respective amount of Estimated Transaction Costs owed to such payee; and
(i) the Purchaser, the CompanyMerger Sub, the Company and the Stockholder Representative (on behalf of the Common Security Holders) shall make such other deliveries as are required by Article III hereof.; and 10
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Sources: Merger Agreement