Common use of Closing Date Merger Consideration Clause in Contracts

Closing Date Merger Consideration. By no later than 1 Business Day prior to the Effective Time, Parent shall deposit with the Exchange Agent sufficient shares of Parent Common Stock to pay the aggregate Closing Date Merger Consideration (the “Payment Fund”). Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Stock at the Effective Time pursuant to the Exchange Schedule, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in such exchange. Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Closing Date Merger Consideration in respect of the Company Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-Entry Shares. The “Closing Date Merger Consideration” shall consist of (as adjusted pursuant to this Article II) 40,867,474 shares (as adjusted for stock splits, stock dividends, reverse stock splits, reclassifications, market price changes and the like that occur following the date of this Agreement, and further subject to Section 2.3(d) of fully paid and nonassessable shares of Common Stock, par value $.0001 per share, of Parent (the “Parent Common Stock”). The shares represented by the Company Stock Certificate so surrendered shall forthwith be cancelled. Without limiting the generality of the foregoing (and notwithstanding any other provisions of this Agreement), no interest shall be paid or accrued in respect of any of the Merger Consideration. The Letter of Transmittal shall provide (i) procedures for holders whose Company Stock Certificates are lost, stolen or destroyed to receive the Merger Consideration and (ii) procedures for the transfer of ownership of shares of the Company Common Stock that is not registered on the stock transfer books and records of the Company. Until surrendered in accordance with this Section 2.3 and as specified in the Letter of Transmittal, each Company Stock Certificate shall be deemed at all times from and after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration as provided in this Article II.

Closing Date Merger Consideration. By no later than 1 Business Day prior to the Effective Time, Parent shall deposit with the Exchange Agent sufficient shares of Parent Common Stock to pay the aggregate Closing Date Merger Consideration (the “Payment Fund”). Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Stock at the Effective Time pursuant to the Exchange Schedule, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in such exchange. Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Closing Date Merger Consideration in respect of the Company Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-Entry Shares. The “Closing Date Merger Consideration” shall consist of (as adjusted pursuant to this Article IIIII) 40,867,474 7,900,000 shares (as adjusted for stock splits, stock dividends, reverse stock splits, reclassifications, market price changes reclassifications and the like that occur following the date of this Agreement, and further subject to Section 2.3(d3.02(c)) of fully paid and nonassessable shares of Class A Common Stock, par value $.0001 per share, of Parent (the “Parent Common Stock”). The shares represented by the Company Stock Certificate so surrendered shall forthwith be cancelled. Without limiting the generality of the foregoing (and notwithstanding any other provisions of this Agreement), no interest shall be paid or accrued in respect of any of the Merger Consideration. The Letter of Transmittal shall provide (i) procedures for holders whose Company Stock Certificates are lost, stolen or destroyed to receive the Merger Consideration and (ii) procedures for the transfer of ownership of shares of the Company Common Stock that is not registered on the stock transfer books and records of the Company. Until surrendered in accordance with this Section 2.3 and as specified in the Letter of Transmittal, each Company Stock Certificate shall be deemed at all times from and after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration as provided in this Article II.

Closing Date Merger Consideration. By No later than the close of business of the fifth (5th) Business Day preceding the Closing Date, the Company shall provide to Parent a written statement, signed by a financial officer of the Company (the “Closing Statement”), setting forth (a) the Company’s good faith estimate, together with related supporting calculations and work papers and back-up materials relating thereto, of the consolidated balance sheet of the Company Entities as of the close of business on the Closing Date and the amount of Shift Transaction Expenses, including by category those that have been paid or are to be paid prior to the Closing, those that are to be paid as part of the Closing pursuant to Section 3.4 and those that are expected to otherwise remain unpaid as of the close of business on the Closing Date and satisfied thereafter in accordance with their terms, (b) the Net Asset Amount based on such estimates, and (c) the Closing Date Merger Consideration and Ownership Allocation based on such estimates. The Closing Statement and all components thereof shall be prepared in accordance with this Agreement and with GAAP applied on a basis consistent with the preparation of the Balance Sheet. The Company shall provide Parent and its representatives with reasonable access during normal business hours to the relevant books, records and finance personnel of the Company to enable Parent and its representatives to review and analyze the Closing Statement and the components thereof. The Parties shall meet and confer regarding the Closing Statement and the components thereof no later than 1 the third (3rd) Business Day prior to the Effective TimeClosing Date, Parent and shall deposit with make such changes thereto as the Exchange Agent sufficient shares of Parent Common Stock to pay Parties may mutually and in good faith agree, and the aggregate Closing Date Merger Consideration (Statement as so mutually agreed shall be the “Payment Fund”)Closing Statement” hereunder. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Stock at the Effective Time pursuant to the Exchange Schedule, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in such exchange. Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Closing Date Merger Consideration in respect of the Company Stock represented by a Certificate or Book-Entry Share upon If (i) surrender there is a dispute between the Parties regarding the Closing Statement that is not resolved prior to the Exchange Agent of a CertificateClosing Date, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) Net Asset Amount set forth in the case of Book-Entry Shares. The “Closing Date Merger Consideration” shall consist of (Statement as adjusted pursuant to this Article II) 40,867,474 shares (as adjusted for stock splits, stock dividends, reverse stock splits, reclassifications, market price changes and the like that occur following the date of this Agreement, and further subject to Section 2.3(d) of fully paid and nonassessable shares of Common Stock, par value $.0001 per share, of Parent (the “Parent Common Stock”). The shares represented delivered by the Company Stock Certificate so surrendered is within $1,000,000 of resulting in a Net Asset Shortfall, and (iii) the net amount in dispute exceeds $1,000,000, then Parent shall forthwith be cancelled. Without limiting have the generality unilateral option to delay the Closing for up to a ten (10) day period (including for such purposes past the Outside Date, and any such delay period shall suspend the application of the foregoing Outside Date until the expiration of such delay period) for Parent and the Company to have an opportunity to resolve and settle all then remaining disputes, and the parties shall reasonably and in good faith work together to resolve and settle such disputes, time being of the essence in respect thereof; provided, however that if the parties shall fail to resolve and settle all such disputes by the end of such ten (10) day period after complying with their obligations under this Section 3.3, the Closing Statement as prepared by the Company (and notwithstanding revised to reflect any other provisions of this Agreement), no interest matters agreed to by the parties in the interim) shall be paid or accrued in respect of the “Closing Statement” hereunder without any of the Merger Consideration. The Letter of Transmittal shall provide (i) procedures for holders whose Company Stock Certificates are lost, stolen or destroyed to receive the Merger Consideration and (ii) procedures for the transfer of ownership of shares of the Company Common Stock that is not registered on the stock transfer books and records of the Company. Until surrendered in accordance with this Section 2.3 and as specified further delay in the Letter of Transmittal, each Company Stock Certificate shall be deemed at all times from and after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration as provided in this Article IIClosing Date.