Common use of Closing and Closing Payments Clause in Contracts

Closing and Closing Payments. (a) Subject to any earlier termination of this Agreement pursuant to and with the effect set forth in Article IX, the closing of the Transactions, including the Merger (the “Closing”), shall take place remotely by the electronic exchange of documents and signatures at 9:00:00 a.m. (Eastern Time), (i) two (2) Business Days following the satisfaction or waiver of the conditions to the Closing set forth in Article IX (other than those conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction or waiver of those conditions at such time), or (ii) on any other date, or at any other time or place, that may be mutually agreed upon by the Company and Purchaser. The date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as the “Closing Date.” Unless expressly set forth herein, all proceedings to be taken and all documents to be executed and delivered by all Parties at the Closing shall be deemed to have been taken and executed simultaneously and no proceedings shall be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered. (b) At least five (5) Business Days prior to the Closing Date, the Company shall prepare and deliver to Purchaser (i) an estimated consolidated balance sheet of the Target Companies as of immediately prior to the Closing, prepared in good faith and in accordance with this Agreement and the Accounting Principles, (ii) a reasonably detailed statement (the “Pre-Closing Statement”) setting forth (A) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting calculation of the Merger Consideration (the “Estimated Merger Consideration”), which shall be prepared in accordance with this Agreement and the Accounting Principles and (iii) a spreadsheet setting forth with respect to each Equityholder such Equityholder’s name, Units, Pro Rata Share, and the allocation to such Equityholder of the Closing Payment and the methodology for calculating such Equityholder’s share of Future Distribution Amounts, in each case substantially in the format as set forth on Exhibit C hereto (the “Merger Consideration Schedule”). The Company shall consider in good faith any comments or objections to any amounts set forth on the Pre-Closing Statement notified to it by Purchaser prior to the Closing and if, prior to the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall be deemed to be the Pre-Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance with this Agreement, the Merger Consideration Schedule, and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation to any Person, including the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Pre-Closing Statement or the Merger Consideration Schedule. (c) At the Closing, Purchaser shall pay, or cause to be paid, the following: (i) to the Persons entitled thereto in the amounts payable to each counterparty or holder of Indebtedness identified in the respective Payoff Letters, in accordance with the wire transfer instructions set forth in such Payoff Letters, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date; (ii) to the Persons entitled thereto, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date in accordance with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system, and amounts paid as compensation to service providers who are not employees shall be treated as contributed to the Company and immediately thereafter paid by the Company to such service providers, in each case, for federal Income Tax purposes; (iii) to the Escrow Agent, the Escrow Amount, to be held in the Escrow Account and distributed by the Escrow Agent pursuant to an escrow agreement to be entered into as of the Closing by and among Purchaser, the Equityholder Representative, and the Escrow Agent, in substantially the form of Exhibit D (the “Escrow Agreement”); (iv) to the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5) Business Days prior to the Closing Date; and (v) to the Paying Agent, the Closing Payment to be held and distributed by the Paying Agent pursuant to a Paying Agent Agreement to be entered into as of the Closing by and among Purchaser, the Company, the Equityholder Representative and the Paying Agent in substantially the form attached hereto as Exhibit E (the “Paying Agent Agreement”).

Closing and Closing Payments. (a) Subject to any earlier termination of The transactions contemplated by this Agreement pursuant to and with the effect set forth in Article IX, the closing of the Transactions, including the Merger will be consummated (the “Closing”), shall take place ) remotely by the electronic exchange of documents and signatures at 9:00:00 a.m. (Eastern Time), (i) required to be delivered in connection with the Closing two (2) Business Days following the satisfaction or waiver of the conditions to the Closing set forth in Article IX (other than those conditions to the Closing with respect to actions that by their terms are to the respective Parties will, or would customarily be satisfied expected to, take at the Closing but subject to the satisfaction itself) or waiver of those conditions at on such time), or (ii) on any other date, or at any such other time or place, that as may be mutually agreed upon by the Company Seller and Purchaser. The date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as the “Closing Date.” Unless expressly set forth hereinThe Closing will be effective as of 12:00 a.m., all proceedings to be taken and all documents to be executed and delivered by all Parties at Eastern Time, on the Closing shall be deemed to have been taken and executed simultaneously and no proceedings shall be deemed to have been taken nor documents executed or delivered until all have been taken, executed and deliveredDate. (b) At least five (5) Business Days For purposes of the Closing, not later than three days prior to the Closing Date, the Company shall Seller will prepare and deliver to Purchaser (i) an estimated consolidated balance sheet of the Target Companies as of immediately prior to the Closing, prepared in good faith and in accordance with this Agreement and the Accounting Principles, (ii) a reasonably detailed statement (the “Pre-Closing Statement”) setting forth (A) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting calculation that includes a good faith estimate of the Merger Consideration Purchase Price (the “Estimated Merger ConsiderationClosing Estimate Payment”), which shall be prepared in accordance with this Agreement and ) based upon the Accounting Principles and (iii) a spreadsheet setting forth with respect to each Equityholder such Equityholder’s name, Units, Pro Rata Share, and the allocation to such Equityholder most recent ascertainable financial information of the Company as of the close of business on the Business Day immediately preceding the Closing Payment Date, including the Payoff Letters and the methodology for calculating such Equityholder’s share a statement of Future Distribution Amounts, in each case substantially in the format as set forth on Exhibit C hereto (the “Merger Consideration Schedule”)Transaction Expenses. The Company shall consider in good faith any comments or objections to any amounts set forth on the Pre-Closing Statement notified to it by Purchaser prior to shall also contain an estimated balance sheet of the Company as of the close of business on the Business Day immediately preceding the Closing and if, prior to the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall Date. The final Purchase Price will be deemed to be the Pre-Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreementdetermined, and all obligations to make such any necessary adjustment payments shall will be deemed fulfilled to made, following the extent such payments are made Closing in accordance with this Agreementthe provisions of Sections 2.4, the Merger Consideration Schedule2.5, 2.6 and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation to any Person, including the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Pre-Closing Statement or the Merger Consideration Schedule2.7. (c) At Subject to the delivery of the items set forth in Section 2.9(b), at the Closing, Purchaser shall pay, or cause to be paid, will make the followingfollowing payments as indicated below: (i) to the Persons entitled thereto in the amounts payable to each counterparty or holder $18,000,000 of Indebtedness identified in the respective Payoff Letters, in accordance with the wire transfer instructions set forth in such Payoff Letters, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date; Estimate Payment (iithe “Escrow Funds”) to the Persons entitled theretowill be deposited with Xxxxx Fargo Bank, National Association, a national banking association (together with its successors and permitted assigns, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date in accordance with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system“Escrow Agent”), and amounts paid as compensation to service providers who are not employees shall be treated as contributed to the Company and immediately thereafter paid by the Company to such service providersheld, in each caseinvested, for federal Income Tax purposes; (iii) to the Escrow Agent, the Escrow Amount, to be held in the Escrow Account and distributed by the Escrow Agent pursuant to the terms and conditions of an escrow agreement to be entered into as of the Closing by and among Purchaser, the Equityholder Representative, Seller and the Escrow Agent, Agent in substantially the form of Exhibit D A attached hereto (as amended, modified, or supplemented from time to time in accordance with the terms thereof, the “Escrow Agreement”); (iv) to the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5) Business Days prior to the Closing Date; and (vii) to the Paying Agent, the Closing Payment to be held and distributed by the Paying Agent pursuant to a Paying Agent Agreement to be entered into as remainder of the Closing Estimate Payment will be delivered to Seller or as directed by Seller by wire transfer of immediately available funds to the bank account designated by Seller at least two Business Days before the Closing Date. (d) Subject to the delivery of all of the items set forth in Section 2.9(b), at the Closing, Purchaser will pay, or will cause the Company to pay, in cash by wire transfer of immediately available funds (i) the Indebtedness set forth in the Payoff Letters in accordance with the wire transfer instructions set forth in the Payoff Letters, and among Purchaser, (ii) the Company, Transaction Expenses set forth in the Equityholder Representative and statement of Transaction Expenses included in the Paying Agent Pre-Closing Statement in substantially accordance with the form attached hereto as Exhibit E (the “Paying Agent Agreement”)wire transfer instructions set forth on such schedule.

Closing and Closing Payments. (a) Subject to any earlier termination of The transactions contemplated by this Agreement pursuant to and with the effect set forth in Article IX, the closing of the Transactions, including the Merger shall be consummated (the “Closing”), shall take place ) remotely by the electronic exchange of documents and signatures at 9:00:00 a.m. (Eastern Time), (i) two (2) via email no later than three Business Days following after the satisfaction or waiver or, if permissible, waiver, of the conditions to the Closing set forth in Article IX VIII (other than those conditions that by their terms nature are to be satisfied at the Closing Closing, but subject to the satisfaction or waiver of those conditions at such timeconditions), or (ii) on any such other date, or at any such other time or place, that may as shall be mutually agreed upon by the Company and PurchaserPurchaser (provided that such date shall not be later than the date on which a merger approval certificate is issued by the Companies Registrar). The date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as the “Closing Date.” Unless expressly set forth hereinIn lieu of an in-person Closing, all the Closing may instead be accomplished by email (in PDF or similar format) transmission to the respective offices of legal counsel for the parties of the requisite documents, duly executed where required, delivered upon actual confirmed receipt. All proceedings to be taken and all documents to be executed and delivered by all Parties parties at the Closing shall will be deemed to have been taken and executed simultaneously simultaneously, and no proceedings shall will be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered. (b) At least Not less than five (5) Business Days prior to the anticipated Closing Date, the Company shall prepare and deliver to Purchaser (i) an estimated consolidated balance sheet of the Target Companies as of immediately prior to the Closing, prepared in good faith and in accordance with this Agreement and the Accounting Principles, (ii) a reasonably detailed statement (the “Pre-Closing StatementConsideration Certificate”) ), certified by the Chief Executive Officer of the Company, setting forth forth: (Ai) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting Company’s good faith calculation of the Merger Closing Consideration, together with the Company’s good faith estimates of the Closing Indebtedness and Transaction Expense Amount, based upon the most recent ascertainable financial information and records of the Company and the Transaction Expense Amount and (ii) the Payout Spreadsheet. The Closing Consideration (the “Estimated Merger Consideration”), which Certificate shall be prepared in accordance with the terms of this Agreement Agreement, and, to the extent not inconsistent therewith, US GAAP. Prior to the Closing, Purchaser (A) shall have an opportunity to review with the Company and the Accounting Principles and (iii) a spreadsheet setting forth with respect to each Equityholder such Equityholder’s name, Units, Pro Rata Shareits representatives, and the allocation to such Equityholder Company shall provide Purchaser and its representatives reasonable access during normal business hours and upon reasonable notice to, the records of the Company and such information used to prepare the Closing Payment Consideration Certificate and Payout Spreadsheet and its personnel, and (B) may object to all or any part of, the methodology for calculating such Equityholder’s share of Future Distribution Amounts, in each case substantially in the format as set forth on Exhibit C hereto (the “Merger Closing Consideration Schedule”)Certificate. The Company shall consider such objections in good faith, but the Company’s reasonable good faith any comments or objections to any amounts set forth on the Pre-Closing Statement notified to it by Purchaser prior to estimates of the Closing Indebtedness and if, prior to Transaction Expense Amount shall control for purposes of calculating the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall be deemed payments to be the Pre-made at Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance ‎Section 2.7 (it being understood that Purchaser does not waive its rights with this Agreement, the Merger Consideration Schedule, and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation respect to any Person, including misrepresentation by the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information Company as more fully set forth on the Pre-Closing Statement or the Merger Consideration Schedulein Section 9 herein). (c) At Promptly after the ClosingClosing Date and on the Effective Time, Purchaser shall pay, or cause make the following payments to be paid, the followingPersons indicated below: (i) an amount in Purchaser Share Consideration (valued at the Purchaser Share Consideration Price) equal to the Persons entitled thereto in the amounts payable to each counterparty or holder of Indebtedness identified in the respective Payoff Letters, in accordance with the wire transfer instructions set forth in such Payoff Letters, which Indemnity Escrow Amount shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date; (ii) to the Persons entitled thereto, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date in accordance deposited with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system, and amounts paid as compensation to service providers who are not employees shall be treated as contributed to the Company and immediately thereafter paid by the Company to such service providers, in each case, for federal Income Tax purposes; (iii) to the Escrow Agent, the Escrow Amount, to be held in the Escrow Account and distributed by the Escrow Agent pursuant to an escrow agreement to be entered into as the terms and conditions of the Closing by Escrow and among Purchaser, the Equityholder Representative, and the Escrow Agent, in substantially the form of Exhibit D (the “Escrow Paying Agent Agreement”); (ivii) to an amount of Purchaser Share Consideration (valued at the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5Purchaser Share Consideration Price) Business Days prior equal to the Closing Date; and Consideration minus (vA) to the Paying AgentIndemnity Escrow Amount, and minus (B) the Closing Payment to Expense Fund Amount, as set forth on the Payout Spreadsheet, shall be held issued and distributed by deposited with the Paying Agent pursuant for the benefit of and distribution to a Paying Agent Agreement to be entered into as of the Closing by and among Purchaser, the Company, the Equityholder Representative and the Paying Agent in substantially the form attached hereto as Exhibit E (the “Paying Agent Agreement”)Equityholders.

Closing and Closing Payments. (a) Subject to any earlier termination of this Agreement pursuant to and with the effect set forth in Article IX, the closing of the Transactions, including the Merger The Transactions shall be consummated (the “Closing”)) at 9:00 a.m., shall take place remotely by local time, at the electronic exchange offices of documents and signatures at 9:00:00 a.m. (Eastern Time)Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, (i) LLP, 000 00xx Xxxxxx XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, two (2) Business Days following the satisfaction or waiver of the conditions to the Closing closing set forth in Article IX (other than those conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction or waiver of those conditions at on such time), or (ii) on any other date, or at any such other time or place, that may as shall be mutually agreed upon by the Company Sellers’ Representative and Purchaser. The date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as the “Closing Date.” Unless expressly set forth herein, all proceedings to be taken and all documents to be executed and delivered by all Parties at the Closing shall be deemed to have been taken and executed simultaneously and no proceedings shall be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered.” (b) At Subject to the delivery of the items set forth in Section 2.10(b), at the Closing, Purchaser shall deliver (i) the Closing Cash by wire transfer of immediately available funds to a bank account designated by the Paying Agent by written notice to Purchaser at least five (5) two Business Days prior to before the Closing Date, for the purpose of effecting the exchange in accordance with Section 2.8 of cash for Company shall prepare and deliver to Purchaser (i) an estimated consolidated balance sheet of the Target Companies as of Stock Certificates that, immediately prior to the ClosingEffective Time, prepared in good faith represented Shares entitled to payment pursuant to Section 2.2; and in accordance with this Agreement and the Accounting Principles, (ii) the Seller Representative Expense Fund by wire transfer of immediately available funds to a reasonably detailed statement (bank account designated by the “Pre-Closing Statement”) setting forth (A) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting calculation of the Merger Consideration (the “Estimated Merger Consideration”), which shall be prepared in accordance with this Agreement and the Accounting Principles and (iii) a spreadsheet setting forth with respect Sellers’ Representative by written notice to each Equityholder such Equityholder’s name, Units, Pro Rata Share, and the allocation to such Equityholder of Purchaser at least two Business Days before the Closing Payment and the methodology for calculating such Equityholder’s share of Future Distribution Amounts, in each case substantially in the format as set forth on Exhibit C hereto (the “Merger Consideration Schedule”). The Company shall consider in good faith any comments or objections to any amounts set forth on the Pre-Closing Statement notified to it by Purchaser prior to the Closing and if, prior to the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall be deemed to be the Pre-Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance with this Agreement, the Merger Consideration Schedule, and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation to any Person, including the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Pre-Closing Statement or the Merger Consideration ScheduleDate. (c) At Subject to the Closingdelivery of the items set forth in Section 2.10(b), at the Closing Purchaser shall pay, or cause deliver the Merger Consideration Shares less the Escrow Shares and less the Merger Consideration Shares into which the Dissenting Shares would otherwise have converted to the Paying Agent for delivery to the Company Stockholders who duly complete and sign a Letter of Transmittal and deliver the same to the Paying Agent as provided in Section 2.8 hereof. (d) Purchaser shall deliver the Escrow Shares to the Paying Agent to be paid, the following: (i) to the Persons entitled thereto in the amounts payable to each counterparty or holder of Indebtedness identified in the respective Payoff Letters, held in accordance with the wire transfer instructions set forth terms of the Escrow Agreement. (e) Notwithstanding anything in such Payoff Lettersthis Agreement to the contrary, which the Purchaser and the Surviving Corporation shall be provided entitled to Purchaser at least five (5) Business Days prior deduct and withhold from the amounts otherwise payable to the Closing Date; (ii) any Company Stockholder pursuant to the Persons entitled thereto, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date in accordance with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, this Agreement or any Letter of Transmittal any amounts treated as wages or compensation to a current or former employee of the owed by such Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system, and amounts paid as compensation to service providers who are not employees shall be treated as contributed Stockholder to the Company and immediately thereafter paid in respect of any loans or advances made by the Company to such service providersCompany Stockholder and any Taxes required to be withheld from such Company Stockholder in connection with such payments or in connection with the exercise of any Options by such Company Stockholder. The Surviving Corporation shall remit to the appropriate Governmental Authority an amount equal to such Tax withholdings on or before the due date thereof. To the extent that amounts are so withheld and paid over to the Governmental Authority by the Surviving Corporation, in each case, such withheld amounts shall be treated for federal Income Tax purposes;all purposes of this Agreement as having been paid to the applicable Company Stockholder or Optionholder. (iiif) to the Escrow Agent, the Escrow Amount, to The Dissenters Holdback shall be held in the Escrow Account and distributed used by the Escrow Agent pursuant Purchaser solely for the payment for Dissenting Shares under the Minnesota Act. In the event that any holder of Dissenting Shares loses its right to an escrow agreement receive the fair value of such Shares under the Minnesota Act, such Company Shareholder shall be entitled to be entered into as receive the Per Share Merger Consideration in accordance with the terms of the Closing by and among Purchaser, the Equityholder Representative, and the Escrow Agent, in substantially the form of Exhibit D (the “Escrow this Agreement”); (iv) to the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5) Business Days prior to the Closing Date; and (v) . Purchaser shall deliver to the Paying AgentAgent the amount of the Dissenters Holdback allocable to any Company Stockholders who were holders of Dissenting Shares and who have lost or otherwise forfeited or withdrawn their right to dissent under the Minnesota Act, less the Closing Payment Per Share Cash Consideration allocated and/or paid with respect to the Shares owned by such Company Stockholders. Any such amount shall be held and distributed by the Paying Agent pursuant to a Paying Agent Agreement to be entered into as of the Closing by and among Purchaser, the Company, the Equityholder Representative and the Paying Agent in substantially the form attached hereto as Exhibit E (the “Paying Agent Agreement”)Company Stockholders based on their respective Pro Rata Share thereof.

Closing and Closing Payments. (a) Subject to any earlier termination of this Agreement pursuant to and with the effect set forth in Article IXhereof, the closing of the Transactions, including the Merger and the Other Transactions (the “Closing”), shall will take place remotely by at the electronic exchange offices of documents and signatures at 9:00:00 a.m. Xxxxxxx Procter LLP (Eastern Time“GP”), Three Embarcadero Center San Francisco, CA, beginning at 10:00 a.m. Mountain time, on the second (i) two (22nd) Business Days following Day after the satisfaction or waiver of the all conditions to the Closing set forth in Article IX VI (other than those conditions that by their terms nature are to be satisfied at the Closing Closing, but subject to the satisfaction or waiver of those such conditions at or prior to the Closing) or such time), or (ii) on any other date, or at any other time or place, that may be mutually agreed upon by date or time as Purchaser and the Company may mutually determine; provided that Purchaser shall not be required to effect the Closing prior to the earlier of (x) the date that is forty-five (45) days after the date hereof and Purchaser. The (y) the date that is three (3) Business Days after the date on which syndication of the Debt Financing has been completed (the actual date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as occurs, the “Closing Date.” Unless expressly set forth herein”). In lieu of an in-person Closing, all the Closing may instead be accomplished by facsimile or email (in .PDF format) transmission to the respective offices of legal counsel for the Parties of the requisite documents, duly executed where required, delivered upon actual confirmed receipt, with originals (if requested) to be delivered by overnight courier service on the next Business Day following the Closing. All proceedings to be taken and all documents to be executed and delivered by all Parties at the Closing shall will be deemed to have been taken and executed simultaneously and no proceedings shall will be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered. (b) At least five three (53) Business Days prior to the anticipated Closing Date, Date the Company shall will prepare and deliver to Purchaser (i) an estimated consolidated balance sheet of the Target Companies as of immediately prior to the Closing, prepared in good faith and in accordance with this Agreement and the Accounting Principles, (ii) a reasonably detailed statement (the “Pre-Estimated Closing Statement”) setting forth (A) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting calculation Company’s good faith estimate of the Merger Consideration (the “Estimated Merger Consideration”), which including estimates of the Company’s (A) Cash Equivalents (“Estimated Company Cash”), (B) Net Working Capital Adjustment (“Estimated Net Working Capital Adjustment”), (C) Indebtedness (“Estimated Indebtedness” ), and (D) Transaction Expenses (to the extent not being paid by the Company Group prior to the Closing, “Estimated Transaction Expenses”) each of (A) through (D) determined as of 11:59 p.m., Mountain time on the Business Day immediately prior to the Closing Date (the “Measurement Time”) and (ii) the Allocation Schedule. The Estimated Closing Statement shall be based upon the books and records of the Company Group and shall be prepared in accordance with the definitions contained in this Agreement and the Accounting Principles Sample Statement and (iii) a spreadsheet setting forth GAAP applied consistently with respect to each Equityholder such Equityholder’s name, Units, Pro Rata Share, the accounting principles and the allocation to such Equityholder of the Closing Payment and the methodology for calculating such Equityholder’s share of Future Distribution Amounts, in each case substantially in the format as procedures set forth on Exhibit C hereto Schedule 2.8 (the “Merger Consideration ScheduleAccounting Principles”). Purchaser and its agents shall be provided with reasonable access, during regular business hours and upon reasonable notice, to the financial books and records on which the Estimated Closing Statement is based and to the employees and agents of the Company Group who prepared the Estimated Closing Statement so as to enable it to review the amounts set forth in the Estimated Closing Statement and the respective components thereof. The Company shall will review and consider in good faith any comments or objections changes to any amounts set forth on the Pre-Estimated Closing Statement notified to it suggested by Purchaser prior to Purchaser. The final Merger Consideration will be determined, and any necessary adjustment payments will be made, following the Closing and if, prior to the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall be deemed to be the Pre-Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance with this Agreementthe provisions of Sections 2.7, the Merger Consideration Schedule2.8, and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation to any Person, including the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Pre-Closing Statement or the Merger Consideration Schedule2.9. (c) At Subject to the delivery of the items set forth in Section 2.9(b), at the Closing, Purchaser shall pay, or cause to be paid, the followingwill: (i) pay, or will cause the Surviving Corporation or one or more of its Subsidiaries to pay, in cash (A) the Persons entitled thereto Indebtedness set forth in the amounts payable to each counterparty or holder of Indebtedness identified in the respective Payoff Letters, in accordance with the wire transfer instructions set forth in such the Payoff Letters, which shall be provided to Purchaser at least five and (5B) Business Days prior to the Closing Date; (ii) to the Persons entitled thereto, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date in accordance with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, any amounts treated as wages or compensation to a current or former employee ; (ii) deliver the portion of the Company shall be Option Merger Consideration being paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system, and amounts paid as compensation to service providers who are not employees shall be treated as contributed holders of Vested Options (other than No-Withholding Options) to the Company Surviving Corporation and immediately thereafter paid by cause the Company Surviving Corporation to pay and deliver such service providers, in each case, for federal Income Tax purposesamounts to Vested Optionholders pursuant to Section 2.6(b) (other than with respect to No-Withholding Options); (iii) deliver the Promised Option Bonus Amount to the Surviving Corporation and cause the Surviving Corporation to pay and deliver such amounts pursuant to Section 2.6(c); (iv) deliver the Representative Expense Amount to the Representative in accordance with the instructions provided by the Company to Purchaser at least three (3) Business Days prior to the Closing Date; (v) deposit $6,000,000 (the “Adjustment Escrow Amount,” and together with any interest or other earnings thereon, the “Escrow Fund”) with Wilmington Trust, N.A. (together with its successors and permitted assigns, “Escrow Agent, the Escrow Amount”), to be held in the Escrow Account held, invested, and distributed by the Escrow Agent pursuant to the terms and conditions of an escrow agreement to be entered into as of the Closing by and among Purchaser, the Equityholder RepresentativeSurviving Corporation, Representative and the Escrow Agent, Agent in substantially the form of Exhibit D E (as amended, modified, or supplemented from time to time in accordance with the terms thereof, the “Escrow Agreement”); (iv) to the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5) Business Days prior to the Closing Date; and (vvi) to deposit the Remaining Estimated Merger Consideration with Wilmington Trust, N.A. (together with its successors and permitted assigns, “Paying Agent”), the Closing Payment to be held and distributed by the Paying Agent pursuant to Section 2.6(a) and Section 2.6(b) and the terms and conditions of a Paying Agent Agreement to be entered into as of the Closing by and among Purchaser, the Company, the Equityholder Representative and the Paying Agent in substantially the form attached hereto as Exhibit E F (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Paying Agent Agreement”).

Closing and Closing Payments. (a) Subject to any earlier termination of this Agreement pursuant to and with the effect set forth in Article IX, the closing of the Transactions, including the Merger (the “Closing”), shall take place remotely by the electronic exchange of documents and signatures at 9:00:00 a.m. (Eastern Time), (i) two (2) Business Days following the satisfaction or waiver of the conditions to the Closing set forth in Article IX (other than those conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction or waiver of those conditions at such time), or (ii) on any other date, or at any other time or place, that may be mutually agreed upon by the Company and Purchaser. The date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as the “Closing Date.” Unless expressly set forth herein, all proceedings to be taken and all documents to be executed and delivered by all Parties at the Closing shall be deemed to have been taken and executed simultaneously and no proceedings shall be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered. (b) At least five (5) Business Days prior to the Closing Date, the Company shall prepare and deliver to Purchaser (i) an estimated consolidated balance sheet of the Target Companies as of immediately prior to the Closing, prepared in good faith and in accordance with this Agreement and the Accounting Principles, (ii) a reasonably detailed statement (the “Pre-Closing Statement”) setting forth (A) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting calculation of the Merger Consideration (the “Estimated Merger Consideration”), which shall be prepared in accordance with this Agreement and the Accounting Principles and (iii) a spreadsheet setting forth with respect to each Equityholder such Equityholder’s name, Units, Pro Rata Share, and the allocation to such Equityholder of the Closing Payment and the methodology for calculating such Equityholder’s share of Future Distribution Amounts, in each case substantially in the format as set forth on Exhibit C hereto (the “Merger Consideration Schedule”). The Company shall consider in good faith any comments or objections to any amounts set forth on the Pre-Closing Statement notified to it by Purchaser prior to the Closing and if, prior to the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall be deemed to be the Pre-Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance with this Agreement, the Merger 157437977.10 Consideration Schedule, and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation to any Person, including the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Pre-Closing Statement or the Merger Consideration Schedule. (c) At the Closing, Purchaser shall pay, or cause to be paid, the following: (i) to the Persons entitled thereto in the amounts payable to each counterparty or holder of Indebtedness identified in the respective Payoff Letters, in accordance with the wire transfer instructions set forth in such Payoff Letters, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date; (ii) to the Persons entitled thereto, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date in accordance with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system, and amounts paid as compensation to service providers who are not employees shall be treated as contributed to the Company and immediately thereafter paid by the Company to such service providers, in each case, for federal Income Tax purposes; (iii) to the Escrow Agent, the Escrow Amount, to be held in the Escrow Account and distributed by the Escrow Agent pursuant to an escrow agreement to be entered into as of the Closing by and among Purchaser, the Equityholder Representative, and the Escrow Agent, in substantially the form of Exhibit D (the “Escrow Agreement”); (iv) to the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5) Business Days prior to the Closing Date; and (v) to the Paying Agent, the Closing Payment to be held and distributed by the Paying Agent pursuant to a Paying Agent Agreement to be entered into as of the Closing by and among Purchaser, the Company, the Equityholder Representative and the Paying Agent in substantially the form attached hereto as Exhibit E (the “Paying Agent Agreement”).

Closing and Closing Payments. (a) Subject to any earlier termination of The transactions contemplated by this Agreement pursuant to and with the effect set forth in Article IX, the closing of the Transactions, including the Merger will be consummated (the “Closing”)) at 10:00 a.m., shall take place remotely by Central time, at the electronic exchange offices of documents and signatures at 9:00:00 a.m. (Eastern Time)Xxxxxxx Coie LLP, (i) 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, two (2) Business Days following the satisfaction or waiver of the conditions to the Closing set forth in Article IX (other than those conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction VIII or waiver of those conditions at on such time), or (ii) on any other date, or at any such other time or place, that as may be mutually agreed upon in writing by Seller Representative and Purchaser Representative; provided, however, that the date of the Closing will be automatically extended from time to time for so long as any of the conditions set forth in Article VIII are not satisfied or waived, subject, however, to the provisions of Article XI. Unless otherwise mutually agreed to by the Company parties and Purchaser. The date on which subject to the preceding sentence, the Closing occurs in accordance with shall occur on July 15, 2014 (such date that the preceding sentence is referred to in this Agreement as Closing actually occurs, the “Closing Date.” Unless expressly set forth herein, all proceedings to be taken ”) and all documents to be executed and delivered by all Parties at the consummation of the Closing shall be deemed to have been taken and executed simultaneously and no proceedings shall be deemed to have been taken nor documents executed or delivered until all have been takeneffective as of 11:59 P.M., executed and deliveredEastern time, on the Closing Date. (b) At least five For purposes of the Closing, Seller Representative will prepare and deliver, no later than three (53) Business Days days prior to the Closing Date, the Company shall prepare and deliver to Purchaser Representative a good faith estimate of the Purchase Price (the “Closing Estimate Payment”) based upon (i) an estimated consolidated the projected combined balance sheet of the Target Companies Business as of immediately prior to the Closing, prepared in good faith Determination Time derived from the most recent ascertainable financial information of Purchased Companies and in accordance with this Agreement and Asset Sellers as of the Accounting PrinciplesDetermination Time, (ii) a reasonably detailed statement (the “Pre-Closing Statement”) setting forth (A) the Estimated Closing Cash, (B) the Estimated Closing Indebtedness, (C) the Estimated Transaction Expenses, (D) the Estimated Working Capital, as well as the resulting Estimated Working Capital Excess (if any) or Estimated Working Capital Shortfall (if any), as the case may be, and (E) the resulting calculation of the Merger Consideration (the “Estimated Merger Consideration”), which shall be prepared in accordance with this Agreement and the Accounting Principles Payoff Letters and (iii) a spreadsheet setting forth with respect to each Equityholder such Equityholder’s name, Units, Pro Rata Sharethe Transaction Invoices. The final Purchase Price will be determined, and the allocation to such Equityholder of any necessary adjustment payments will be made, following the Closing Payment and the methodology for calculating such Equityholder’s share of Future Distribution Amounts, in each case substantially in the format as set forth on Exhibit C hereto (the “Merger Consideration Schedule”). The Company shall consider in good faith any comments or objections to any amounts set forth on the Pre-Closing Statement notified to it by Purchaser prior to the Closing and if, prior to the Closing, the Company and Purchaser agree to make any modification to the Pre-Closing Statement, then the Pre-Closing Statement as so modified shall be deemed to be the Pre-Closing Statement. Purchaser shall be entitled to rely on the accuracy of the Pre-Closing Statement and the Merger Consideration Schedule in all respects in making all applicable payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance with this Agreementthe provisions of Section 2.7, Section 2.8 and Section 2.9. The Closing Estimate Payment will be determined on a basis consistent with the Merger Consideration Schedule, and the Pre-Closing Statement. None of Purchaser or any of its Affiliates (including, after the Closing, the Target Companies) shall have any liability or obligation to any Person, including the Equityholders, for any losses arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Equityholder or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Pre-Closing Statement or the Merger Consideration ScheduleAccounting Principles. (c) At Subject to the delivery of the items set forth in Section 2.10(b), at the Closing, Purchaser shall Representative will deliver to Seller Representative an amount equal to the Closing Estimate Payment by wire transfer of immediately available funds to the bank account(s) designated by Seller Representative by written notice to Purchaser Representative prior to the Closing. (d) Subject to the delivery of all of the items set forth in Section 2.10(b), at the Closing, Purchaser Representative will pay, or cause to be paidby wire transfer of immediately available funds, the following: (i) to the Persons entitled thereto Indebtedness set forth in the amounts payable to each counterparty or holder of Indebtedness identified in the respective Payoff Letters, Letters in accordance with the wire transfer instructions set forth in such the Payoff Letters, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date; (ii) to the Persons entitled thereto, the Transaction Expenses set forth in the Transaction Invoices, which shall be provided to Purchaser at least five (5) Business Days prior to the Closing Date Invoices in accordance with the wire transfer instructions set forth in the Transaction Invoices; provided, however, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system, and amounts paid as compensation to service providers who are not employees shall be treated as contributed to the Company and immediately thereafter paid by the Company to such service providers, in each case, for federal Income Tax purposes; (iii) to the Escrow AgentJPMorgan Chase Bank, the Escrow AmountN.A., to be held in the Escrow Account and distributed by the Escrow Agent pursuant to an escrow agreement to be entered into as of the Closing by and among Purchaser, the Equityholder Representative, and the Escrow Agent, in substantially the form of Exhibit D a national banking association (the “Escrow AgreementAgent”); (iv) , by wire transfer of immediately available funds, an amount equal to the Equityholder Representative, the Equityholder Representative Payment, to the account designated in writing by the Equityholder Representative at least five (5) Business Days prior to the Closing Date; and (v) to the Paying Agent, the Closing Payment to be held and distributed by the Paying Agent pursuant to a Paying Agent Agreement to be entered into as of the Closing by and among Purchaser, the Company, the Equityholder Representative and the Paying Agent in substantially the form attached hereto as Exhibit E $1,500,000 (the “Paying Agent AgreementEscrow Amount”), which shall be deposited into an escrow account established pursuant to the terms of the Escrow Agreement, and which amount shall be released only in accordance with the terms of this Agreement and the Escrow Agreement.