Common use of Total Consideration Clause in Contracts

Total Consideration. The Total Consideration payable by the Surviving Corporation to the Company Equityholders, on behalf of itself and the Transitory Subsidiary, shall be comprised of: (i) the Closing Stock Consideration, payable in cash on the Closing Date to the Paying Agent for the benefit of the holders of shares of Company Stock and thereafter payable by the Paying Agent as set forth on the Closing Date Allocation Schedule; (ii) the Closing Option Consideration, payable to the Surviving Corporation for the benefit of the holders of Company Options and thereafter payable by the Surviving Corporation in accordance with the provisions of Section 2.5; (iii) subject to Section 9.6, each Milestone Payment, in each case, reduced by the portion of each such Milestone Payment payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the terms and conditions of the Engagement Letter, payable to the Company Equityholders in proportion to each Company Equityholder’s Pro Rata Share, in cash, payable within ten (10) Business Days after the date Buyer becomes aware of the achievement of the relevant Developmental Milestone, if achieved, and payable within forty-five (45) days after the end of the calendar quarter in which the relevant Commercial Milestone is achieved, if achieved; provided that if the Commercial Milestone is achieved in the Buyer’s last fiscal quarter of Buyer’s fiscal year, such Commercial Milestone shall be payable within sixty (60) days after the end of such quarter; (iv) the Escrow Amount, as reduced by any disbursements from the Escrow Account in accordance with the Escrow Agreement, payable in cash to the Company Equityholders from the Escrow Account, in accordance with the Escrow Agreement in proportion to each Company Equityholder’s Pro Rata Share; and (v) the Stockholder Representatives Account Payment, payable in cash to the Company Equityholders in proportion to each Company Equityholder’s Pro Rata Share, in connection with the release of the Stockholder Representatives Expense Amount in accordance with Section 2.4(c).

Total Consideration. 4.1 The Total Consideration for the sale and purchase of the Assets under this Agreement, the Trade ▇▇▇▇ Licence and the giving of the covenants in Clause 19 shall be the payment by the Purchasers to the Sellers (or such other persons as the Sellers may direct in writing on their behalf prior to the Completion) of the sum of thirty-one million Dollars (US$31,000,000 being the `Initial Consideration') TOGETHER WITH the payment of the Deferred Consideration as and when due, and TOGETHER FURTHER WITH the arrangement for the collection of the Excluded Accounts Receivables as further set out at Clause 4.4 below and TOGETHER FURTHER WITH the amounts identified for the Stock, the Pre-paid Expenses and the Tangible Assets as set forth in the Final Balance Sheets of the Sellers as of Completion. In order to facilitate the Completion, the Parties agree that the Purchasers shall make a payment to the Sellers on Completion (or such other persons as the Sellers may direct in writing on their behalf prior to the Completion) an amount equal to the book market value of the Stock, the Pre-paid Expenses and the Tangible Assets as set forth on the Estimated Balance Sheets of the Sellers, which payment shall be subject to adjustment as contemplated in Clause 7.5 upon the determination of the Final Balance Sheets. 4.2 The Parties agree that, subject to this Clause 4.2, the Initial Consideration together with the Deferred Consideration payable for each of the Assets and for the giving of the covenants in Clause 19 shall be subject to allocation. Within seven (7) Business Days following the Effective Date, or such additional period of time as the Parties shall agree in writing, the Purchasers and Sellers shall prepare a schedule allocating the Initial Consideration and Deferred Consideration for each of the Assets and for the giving of the covenants in Clause 19 based upon the relative values of the UK Business, the French Business and the German Business and the value of the Assets used in each of the Businesses and the giving of the covenants in Clause 19 hereof. In the event the Purchasers and the Sellers cannot agree on the allocation of the Initial Consideration and the Deferred Consideration within such seven (7) Business Day period (or such longer period as they may agree in writing) the Purchasers and the Sellers will elect within a further five (5) Business Day period an independent accounting firm mutually acceptable to the Purchasers and the Sellers to determine such allocation. If the Purchasers and the Sellers are unable to agree on the choice of an independent accounting firm within such five (5) Business Day period they will, within a further two (2) Business Day period, select an internationally recognised independent public accounting firm by drawing a lot (after excluding their regular external accounting adviors). The independent accounting firm so selected shall prepare an allocation schedule allocating the Initial Consideration and the Deferred Consideration amongst the Assets based upon the relative values of the UK Business, the German Business and the French Business and the value of the Assets of each such Business and the giving of the covenants in Clause 19 hereof. The allocation schedule finally determined in accordance with this Clause 4.2 shall be conclusive and binding upon the Parties. The allocation of the Assets shall be those identified and listed at Clause 2.1 above, excluding the Stock, Tangible Assets and the Excluded Assets Receivables. 4.3 The Initial Consideration and the Deferred Consideration shall be apportioned to the various classes of Assets in accordance with Clause 4.2 above in proportion to the amount payable for them under this Clause (subject to any deduction from said allocation which may be imposed in relation to a net present value in respect of the Deferred Consideration) and as so apportioned shall be adopted by the Parties for all purposes including Tax and stamp duty (if any) together with any other registration taxes due and payable throughout the Territory. The Parties agree that further sums forming part of the Total Consideration shall be added to or subtracted from the allocation pursuant to this Clause. The Parties agree that they will each present their computations and reliefs for Taxation purposes on the basis of the above figures unless as otherwise varied by the terms of this Clause. 4.4 From the Completion Date, the Purchasers shall be or the Purchasers shall procure that they shall be responsible for collecting on behalf of the Sellers the Excluded Accounts Receivables for a period of one (1) year from Completion at the Purchasers' own cost and expense and shall report and remit the same to ZDEL on a quarterly basis throughout that year (the usual quarter days being 31 March, 30 June, 30 September and 31 December each year) in the currency in which payments are received for the said Excluded Accounts Receivables PROVIDED THAT: a. if, on the date which is one hundred and eighty (180) days from the Completion Date (the 'Measurement Date'), the Purchasers (or one of the Purchasers' Group) have collected and remitted or have procured the collection and remittance to ZDEL in accordance with this Clause 4.4 an aggregate amount less than the Closing Net Receivable Amount (said amount being the 'Collected Amount' in funds in the currencies in which they are received) the Purchasers will pay to ZDEL a sum equal to fifty per cent (50.00%) of the Accounts Receivable Deficit up to a maximum capped amount of one million five hundred thousand Dollars (US$1,500,000) (the 'Shortfall Balancing Payment'). The Shortfall Balancing Payment shall be paid by telegraphic transfer to a bank account designated by the Companies within thirty (30) days of the Measurement Date; b. if the Purchasers are required to make a Shortfall Balancing Payment pursuant to Clause 4.4 a. above, the Purchasers shall continue to be responsible to collect on the Sellers' behalf any remaining outstanding Excluded Accounts Receivables and shall remit the same to ZDEL on a quarterly basis PROVIDED THAT once the Purchasers have remitted to ZDEL additional Excluded Accounts Receivables collected after the Measurement Date such that the aggregate amount remitted to ZDEL (including amounts remitted prior to the Measurement Date but excluding the amount of the Shortfall Balancing Payment) equals the Closing Net Receivable Amount less three million Dollars (US$3,000,000), the Purchasers shall be entitled to retain fifty per cent (50.00%) of any Excluded Accounts Receivables collected thereafter in excess of such Closing Net Receivable Amount less three million Dollars (US$3,000,000) so long as the Purchasers remit the other fifty per cent (50.00%) of such Excluded Accounts Receivable to ZDEL within thirty (30) days of the close of each quarter; c. if, on the Measurement Date, the Purchasers (or one of the Purchasers' Group) have collected and remitted or procured the collection and remittance to ZDEL in accordance with this Clause 4.4 of an aggregate Collected Amount equal to or in excess of the Closing Net Receivable Amount, the Purchasers shall retain fifty per cent (50.00%) of the Accounts Receivable Excess so long as the Purchasers (or the relevant member of the Purchasers' Group) remits the other fifty per cent (50.00%) of such Accounts Receivable Excess to ZDEL within thirty (30) days of the close of each quarter; d. for the avoidance of doubt, the Computations set out at Schedule 7 shall provide a worked example of the arrangements contemplated in this Clause 4.4. In particular, Example 1 and Example 2 shall be an illustrative computation for the purposes of Clause 4.4 a. and b. and Example 3 shall be an illustrative computation for the purposes of Clause 4.4c. 4.5 The Purchasers agree to use reasonable efforts to collect the Excluded Accounts Receivable for the benefit of the Sellers and to make such efforts as the Purchasers use to collect their own accounts receivable. Any collections after the Completion Date by the Purchasers with respect to the accounts receivables of the Businesses shall be credited against the accounts receivable owed by the payor in question in the order such payor's receivables were invoiced by the Sellers, except to the extent a payor indicates in writing that it wishes to pay a particular account receivable with such payment. The Purchasers shall not agree to any settlement, discount or reduction of any Excluded Account Receivable without the prior written consent of ZDEL such consent not to be unreasonably withheld or delayed. The Purchasers shall not assign, pledge or grant a security interest in any of the Excluded Accounts Receivable to any third party or claim a security interest in any of the Excluded Accounts Receivable. After the period of one (1) year referred to in Clause 4.4 above, the Parties agree that the Purchasers shall no longer have any continuing responsibility, obligation or liability for the collection and remittance of the Excluded Accounts Receivables. After this period it shall be up to the Sellers to decide whether to continue to collect any Excluded Accounts Receivables SAVE THAT the Purchasers shall first consent in writing (such consent not to be unreasonably withheld or delayed) to the bringing of any action (or such like) against any party so obligated to any one of the Sellers for any such Excluded Accounts Receivables after this time. 4.6 The Total Consideration payable by the Surviving Corporation Purchasers to the Company Equityholders, on behalf of itself Parent or the Sellers' Group (as the case may be) and as directed by the Transitory Subsidiary, Parent to the Purchasers from time to time shall be comprised of: (i) exclusive of any amounts in respect of VAT payable. If the Closing Stock Considerationpayment of any part of the Total Consideration shall constitute the consideration for a supply of all or any part of the Assets under this Agreement for VAT purposes, payable in cash on the Closing Date Purchasers shall, upon production of an appropriate invoice for VAT purposes, pay to the Paying Agent for the benefit relevant Seller making such supply by way of the holders of shares of Company Stock and thereafter payable by the Paying Agent as set forth on the Closing Date Allocation Schedule; (ii) the Closing Option Consideration, payable adjustment to the Surviving Corporation for the benefit of the holders of Company Options Total Consideration and thereafter payable by the Surviving Corporation in accordance with the provisions of Section 2.5; (iii) subject Sub-Clause 4.4 an amount equal to Section 9.6, each Milestone Payment, any VAT properly chargeable in each case, reduced by the portion of each such Milestone Payment payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the terms and conditions of the Engagement Letter, payable to the Company Equityholders in proportion to each Company Equityholder’s Pro Rata Share, in cash, payable within ten (10) Business Days after the date Buyer becomes aware of the achievement respect of the relevant Developmental Milestone, if achieved, and payable within forty-five (45) days after supply where such VAT is the end liability of the calendar quarter payee. 4.7 Any and all amounts to be paid pursuant to this Clause 4 shall be paid by telegraphic transfer in same day funds (save as to the provisions contained in Clause 4.4) to ZDEL's account, details of which shall be provided in writing to the relevant Commercial Milestone Purchasers prior to Completion. 4.8 The Purchasers declare that it is achieved, if achieved; provided that if the Commercial Milestone is achieved a member of a group of companies in the Buyer’s last fiscal quarter of Buyer’s fiscal year, such Commercial Milestone shall be payable within sixty (60) days after the end of such quarter;Netherlands for VAT purposes. (iv) the Escrow Amount, as reduced by any disbursements from the Escrow Account in accordance with the Escrow Agreement, payable in cash 4.9 In addition to the Company Equityholders from amounts to be paid by the Escrow Account, in accordance with the Escrow Agreement in proportion to each Company Equityholder’s Pro Rata Share; and (v) the Stockholder Representatives Account Payment, payable in cash Purchasers to the Company Equityholders in proportion Sellers pursuant to each Company Equityholder’s Pro Rata Share, in connection with this Clause 4 as consideration for the release sale and purchase of the Stockholder Representatives Expense Amount Assets, the Purchasers shall assume the Assumed Obligations as provided in accordance with Section 2.4(c)Clause 10 below. In addition to the above the Parties shall enter into the Completion Documents as at the Effective Date in the Agreed Form.

Total Consideration. The Total Consideration payable by the Surviving Corporation (a) Subject to the Company Equityholdersadjustments described in clause (b) below, on behalf of itself and the Transitory Subsidiary, shall total consideration to be comprised paid by Buyer for the Shares is the sum of: (i) $1,200,000 (the "Closing Stock ConsiderationPurchase Price"), payable in cash on by wire transfer at the Closing Date to the Paying Agent for Shareholder in the benefit of the holders of shares of Company Stock and thereafter payable by the Paying Agent as set forth on the Closing Date Allocation Schedulemanner provided in Section 2.03; (ii) $1,000,000 (the "Installment Purchase Price" and together with the Closing Option ConsiderationPurchase Price, the "Cash Purchase Price") payable to the Surviving Corporation for Shareholder in four (4) equal annual payments of $250,000 in immediately available funds within thirty (30) calendar days of December 31, 2000, December 31, 2001, December 31, 2002 and December 31, 2003 (each an "Installment Purchase Price Payment Date") to the benefit of the holders of Company Options and thereafter payable account designated by the Surviving Corporation in accordance with the provisions of Section 2.5Shareholder prior to each such date; (iii) 130,000 shares of common stock, par value $.01 per share, of Buyer to be issued to the Shareholder at the Closing, in the manner provided in Section 2.05 and subject to the transfer restrictions set forth in Section 9.65.08 (the "Issued Shares" and together with the Cash Purchase Price, each Milestone Paymentthe "Total Fixed Consideration"); and (iv) an earn-out payable in accordance with Section 2.03 (such earn-out, when used together with the Installment Purchase Price being hereafter referred to as the "Deferred Purchase Price" and when used together with the Total Fixed Consideration, being hereafter referred to as the "Total Consideration"). Any payments of the Deferred Purchase Price shall be deemed to include interest at the lowest rate provided under the Internal Revenue Code of 1986, as amended (the "Code") for installment obligations. (b) As promptly as practicable, but not more than thirty (30) days, after the Closing Date, Buyer shall prepare, at its cost, in each caseconsultation with the Shareholder and in conformity with generally accepted accounting principals ("GAAP"), reduced applied on a basis consistent with the Annual Financial Statements, and deliver to the Shareholder, a balance sheet of the Company as of the close of business on the Closing Date (the "Closing Date Statement") and its calculation of Working Capital as of the close of business on the Closing Date. The costs and expenses of preparing the Closing Date Statement shall be borne by Buyer, and the costs and expenses of reviewing the Closing Date Statement, if any, shall be borne by the portion Shareholder. The Purchase Price shall be decreased (any such decrease being hereinafter referred to as, the "Closing Adjustment"), if at all, by the amount by which Working Capital at Closing is less than $500,000. To the extent that Working Capital at Closing is more than $500,000, the Basket Amount (as defined in Section 8.02(b)) will be increased by fifty percent (50%) of each such Milestone Payment payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ excess (the "Basket Adjustment"). Any disputes arising in connection with the calculation of Working Capital on the Closing Date Statement shall be resolved in accordance with the terms procedures set forth in Sections 2.02(c) and conditions of 2.02(d). The Closing Adjustment, if any, shall be paid to Buyer by the Engagement Letter, payable to the Company Equityholders Shareholder by wire transfer in proportion to each Company Equityholder’s Pro Rata Share, in cash, payable immediately available funds within ten (10) Business Days days after the date Buyer becomes aware final determination of the achievement Closing Adjustment. The parties agree and acknowledge that Buyer may take the actions contemplated by Section 5.09 prior to the calculation of Working Capital. For the purposes of this Agreement, "Working Capital" means the aggregate amount of cash, plus accounts receivable, plus inventory of product held for sale (but specifically excluding any advances, loans receivable or notes payable arising out of the relevant Developmental Milestonetransactions contemplated by this Agreement), if achieved, and payable within forty-five (45) days after less the end aggregate amount of the calendar quarter in which liabilities of the relevant Commercial Milestone is achievedCompany, if achieved; provided that if the Commercial Milestone is achieved in the Buyer’s last fiscal quarter of Buyer’s fiscal yearincluding, such Commercial Milestone shall be without limitation, accounts payable, deferred revenue, accrued payroll expense and any notes payable within sixty (60) days after the end of such quarter; (iv) the Escrow Amount, or accrued interest on notes payable all as reduced by any disbursements from the Escrow Account computed in accordance with the Escrow Agreement, payable in cash to the Company Equityholders from the Escrow Account, in accordance with the Escrow Agreement in proportion to each Company Equityholder’s Pro Rata Share; and (v) the Stockholder Representatives Account Payment, payable in cash to the Company Equityholders in proportion to each Company Equityholder’s Pro Rata Share, in connection with the release of the Stockholder Representatives Expense Amount in accordance with Section 2.4(c)GAAP.