Common use of Closing Payment of Merger Consideration Clause in Contracts

Closing Payment of Merger Consideration. The closing of the Merger (the "Closing") shall take place at 10:00 a.m. New York City time at the offices of Curtis, Mallet-Prevost, Colt & Mosle LLP, 101 Park Avenue, New York, Xxx Xorx, xx xxx xxxxd business day after xxx xxxxxxxxxx xx Xxxxxxx xxxxx xxxx xeen satisfied or waived or at such other time or on such other date or at such other place as the parties hereto may mutually agree upon in writing (the day on which the Closing takes place being the "Closing Date"); provided, however, that in no event shall the Closing Date occur after August 30, 2004. At Closing, the Parent, Intermediate Parent or the Purchaser shall: (a) pay to the Shareholder Representative, for distribution to the Stockholders in accordance with and subject to Section 3.07, the Closing Merger Consideration; (b) pay to the Lender, Wells Fargo Bank, National Association and any other creditor under xxx Xredit Agreement, the Bank Debt; (c) deposit an aggregate amount of Twelve Million Five Hundred Thousand Dollars ($12,500,000) (the "Initial Escrow Deposit") in escrow with JPMorgan Chase Bank as escrow agent (the "Escrow Agent"), pursuant to the terms of an escrow agreement substantially in the form of Exhibit 3.05(c) hereto (the "Escrow Agreement"), among the Parent, the Shareholder Representative and the Escrow Agent, as security for the Stockholders' indemnification obligations arising under Article 9 hereof, for payments to the Parent pursuant to Section 3.06(d), if any, and as satisfaction for other amounts contemplated by this Agreement. The amount held in escrow by the Escrow Agent at any time and from time to time shall be referred to as the "Escrow Amount". Six (6) months after the Closing Date, the Escrow Agent shall release and deliver to the Shareholder Representative for distribution to the Stockholders a portion of the Escrow Amount equal to the Escrow Amount at such time, if any, less the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9, less Seven Million Five Hundred Thousand Dollars ($7,500,000). Eighteen (18) months after the Closing Date, the Escrow Agent shall release and deliver to the Shareholder Representative for distribution to the Stockholders the remaining portion of the Escrow Amount at such time, if any, less the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9. As any pending indemnification claims are resolved, the Escrow Agent shall, after making any payment related to such claims, release and deliver to the Shareholder Representative for distribution to the Stockholders any amounts remaining from the amounts reserved for such claims. All amounts delivered to the Shareholder Representative by the Escrow Agent for distribution to the Stockholders shall be Post-Closing Merger Consideration or additional Appraisal Consideration, as the case may be, and allocated among the Stockholders by the Shareholder Representative pro rata in accordance with Section 3.02(a) or paid to the Surviving Corporation as Appraisal Consideration in accordance with Section 3.07(c); (d) pay to the holders of the Options such amounts as the Company has negotiated in consideration of the termination of any rights to tax gross-up payments with respect to the Options, as set forth on Exhibit 3.05

Closing Payment of Merger Consideration. The closing of the Merger (the "“Closing"”) shall take place at 10:00 a.m. New York City time at the offices of CurtisXxxxxxx Xxxxxx & Green, Mallet-PrevostP.C., Colt & Mosle LLP, 101 Park Avenue, New York000 Xxxx Xxxxxx, Xxx XorxXxxx, xx xxx xxxxd Xxx Xxxx, within one (1) business day after xxx xxxxxxxxxx xx Xxxxxxx xxxxx xxxx xeen all conditions to Closing shall have been satisfied or waived waived, or at such other time or on such other date or at such other place as the parties hereto may mutually agree upon in writing (the day on which the Closing takes place being the "“Closing Date"”); provided, however, that in no event shall the Closing Date occur after August 30, 2004. At Closing, the Parent, Intermediate Parent or the Purchaser shall: (a) pay to the Shareholder Stockholder Representative, for distribution to the Stockholders and, pursuant to Section 3.04(b), certain Option holders, in accordance with and subject to Section 3.07, the Closing Merger Consideration;; and (b) pay to the Lender, Wells Fargo Bank, National Association and any other creditor under xxx Xredit Agreement, the Bank Debt; (c) deposit an aggregate amount of Twelve One Million Five Hundred Thousand Dollars ($12,500,0001,500,000) (the "Initial “Escrow Deposit"”) in escrow with JPMorgan Chase Bank Xxxxxxx Xxxxxx & Green, P.C. as escrow agent (the "“Escrow Agent"”), pursuant to the terms of an escrow agreement substantially in the form of Exhibit 3.05(c) 3.06 hereto (the "“Escrow Agreement"”), among the ParentPurchaser, the Shareholder Stockholder Representative and the Escrow Agent, as security for the Stockholders' ’ indemnification obligations arising under Article 9 10 hereof, for payments to the Parent pursuant to Section 3.06(d), if any, and as satisfaction for other amounts contemplated by this Agreement. The amount held in escrow by the Escrow Agent at any time and from time to time shall be referred to as the "“Escrow Amount". Six .” (c) In the event that either (i) the Company does not make a Pre-Closing Cash Dividend or (ii) the Company makes a Pre-Closing Cash Dividend and the Purchaser or the Surviving Corporation has not given notice to the Stockholder Representative (in accordance with Section 3.02(b)) that it has deducted the amount of such Pre-Closing Cash Dividend from the Escrow Amount, then, in either such case, on the first business day which falls six (6) months after the Closing Date, the Surviving Corporation shall instruct the Escrow Agent to release and deliver to the Stockholder Representative for distribution to the Stockholders (pro rata based on the total number of Shares outstanding as of the Closing Date), Five Hundred Thousand Dollars ($500,000) of the Escrow Amount. Eighteen (18) months after the Closing Date, the Escrow Agent shall release and deliver to the Shareholder Stockholder Representative for distribution to the Stockholders a portion (pro rata based on the total number of Shares outstanding as of the Closing Date) the remaining balance of the Escrow Amount equal to the Escrow Amount at such timeAmount, if any, less the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9, less Seven Million Five Hundred Thousand Dollars ($7,500,000). Eighteen (18) months after the Closing Date, the Escrow Agent shall release and deliver to the Shareholder Representative for distribution to the Stockholders the remaining portion of the Escrow Amount at such time, if any, less the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 910. As any pending indemnification claims are resolved, the Escrow Agent shall, after making any payment related to such claims, release and deliver to the Shareholder Stockholder Representative for distribution to the Stockholders (pro rata based on the total number of Shares outstanding as of the Closing Date) any amounts remaining from the amounts reserved for such claims. All amounts delivered to the Shareholder Representative by the Escrow Agent for distribution to the Stockholders shall be Post-Closing Merger Consideration or additional Appraisal Consideration, as the case may be, and allocated among the Stockholders by the Shareholder Representative pro rata in accordance with Section 3.02(a) or paid to the Surviving Corporation as Appraisal Consideration in accordance with Section 3.07(c); (d) pay to the holders of the Options such amounts as the Company has negotiated in consideration of the termination of any rights to tax gross-up payments with respect to the Options, as set forth on Exhibit 3.05.

Closing Payment of Merger Consideration. The closing of Subject to the Merger (conditions set forth in this Agreement, the "Closing") Parties agree that the following transfers shall take place at 10:00 a.m. New York City time occur at the offices of Curtis, Mallet-Prevost, Colt & Mosle LLP, 101 Park Avenue, New York, Xxx Xorx, xx xxx xxxxd business day after xxx xxxxxxxxxx xx Xxxxxxx xxxxx xxxx xeen satisfied or waived or at such other time or on such other date or at such other place as the parties hereto may mutually agree upon in writing (the day on which the Closing takes place being the "Closing Date"); provided, however, that in no event shall the Closing Date occur after August 30, 2004. At Closing, the Parent, Intermediate Parent or the Purchaser shall: (a) pay Each of the Shareholders shall deliver to the Parent fully-completed and executed Letters of Transmittal, together with all attachments thereto, and Certificates or, in the event that any Certificate shall have been lost, stolen or destroyed, an affidavit of that fact and providing for indemnification by the registered Shareholder Representativeof such lost, for distribution to the Stockholders in accordance with and subject to Section 3.07, the Closing Merger Consideration;stolen or destroyed Certificate. (b) pay Parent shall deliver to the LenderShareholders’ Representative or the Shareholders, Wells Fargo Bank, National Association and any other creditor under xxx Xredit Agreementif so directed by the Shareholders’ Representative, the Bank Debt;Closing Date Merger Consideration Shares, which shares shall be issued pursuant to the Letter of Transmittal delivered to the Parent by such Shareholder. (c) deposit an aggregate amount None of Twelve Million Five Hundred Thousand Dollars Parent, Merger Sub, the Company, or the Surviving Corporation shall be liable to any person in respect of any shares of Parent Common Stock, cash, dividends or other distributions properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificate shall not have been surrendered prior to four years after the Effective Time ($12,500,000or immediately prior to such earlier date on which any Merger Consideration (and any dividends or other distributions payable with respect thereto and cash in lieu of any fractional shares) (would otherwise escheat to or become the "Initial Escrow Deposit") in escrow with JPMorgan Chase Bank as escrow agent (the "Escrow Agent"property of any Governmental Authority), any such Merger Consideration (and any dividends or other distributions payable with respect thereto and cash in lieu of any fractional shares payable with respect thereto) shall, to the extent permitted by applicable law, become the property of Parent, free and clear of all claims or interest of any person previously entitled thereto. (d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, Parent shall deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration, any dividends or other distributions payable pursuant thereto and cash in lieu of any fractional shares, in each case pursuant to this Article III. (e) Parent shall deposit the terms of an escrow agreement substantially in the form of Exhibit 3.05(c) hereto (the "Escrow Agreement"), among the Parent, the Shareholder Representative and Shares with the Escrow Agent, as security for the Stockholders' indemnification obligations arising under Article 9 hereof, for payments to the Parent pursuant to Section 3.06(d), if any, and as satisfaction for other amounts contemplated by this Agreement. The amount held in escrow by the Escrow Agent at any time and from time to time shall be referred to as the "Escrow Amount". Six (6) months after the Closing Date, the Escrow Agent shall release and deliver to hold the Shareholder Representative for distribution to Escrow Shares in a separate account (the Stockholders a portion “Escrow Fund”), which shall be governed by the terms of the Escrow Amount equal Agreement, for purposes of the payment to the Escrow Amount at such time, if any, less Parent or the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9, less Seven Million Five Hundred Thousand Dollars ($7,500,000). Eighteen (18) months after the Closing Date, the Escrow Agent shall release and deliver to the Shareholder Representative for distribution to the Stockholders the remaining portion of the Escrow Amount at such time, if any, less the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9. As any pending indemnification claims are resolved, the Escrow Agent shall, after making any payment related to such claims, release and deliver to the Shareholder Representative for distribution to the Stockholders any amounts remaining from the amounts reserved for such claims. All amounts delivered to the Shareholder Representative by the Escrow Agent for distribution to the Stockholders shall be Post-Closing Merger Consideration or additional Appraisal ConsiderationShareholders’ Representative, as the case may be, and allocated among the Stockholders of indemnification claims of Parent Indemnitees required by the Shareholder Representative pro rata in accordance with Section 3.02(a) or paid to the Surviving Corporation as Appraisal Consideration in accordance with Section 3.07(c); (d) pay to the holders of the Options such amounts as the Company has negotiated in consideration of the termination of any rights to tax gross-up payments with respect to the Options, as set forth on Exhibit 3.05Article IX.

Closing Payment of Merger Consideration. The closing (a) Closing; Issuance of Closing Date Merger Consideration Shares. Subject to the conditions set forth in this Agreement, the Parties agree that the following transfers shall occur at the Closing: (i) each of the Merger Stockholders shall deliver to the Buyer fully-completed and executed Letters of Transmittal, together with all attachments thereto, and Certificates or, in the event that any Certificate shall have been lost, stolen or destroyed, an affidavit of that fact and providing for indemnification by the registered Stockholder of such lost, stolen or destroyed Certificate; (ii) the "Closing") Buyer shall take place at 10:00 a.m. New York City time at deliver to the offices of CurtisStockholders’ Representative or the Stockholders, Mallet-Prevostif so directed by the Stockholders’ Representative, Colt & Mosle LLP, 101 Park Avenue, New York, Xxx Xorx, xx xxx xxxxd business day after xxx xxxxxxxxxx xx Xxxxxxx xxxxx xxxx xeen satisfied or waived or at such other time or on such other date or at such other place as the parties hereto may mutually agree upon in writing (the day on which the Closing takes place being the "Closing Date"); provided, however, that in no event shall the Closing Date occur after August 30Merger Consideration Shares, 2004. At Closing, the Parent, Intermediate Parent or the Purchaser shall: (a) pay which shares shall be issued pursuant to the Shareholder Representative, for distribution Letter of Transmittal delivered to the Stockholders in accordance with and subject to Section 3.07, the Closing Merger ConsiderationBuyer by such Stockholder; (biii) pay to the Lender, Wells Fargo Bank, National Association and Company shall deliver evidence that the amount of any other creditor under xxx Xredit Agreement, the Bank Debt;Existing Debt Payoff Amount has been paid by it; and (civ) the Buyer shall deposit an aggregate amount of Twelve Million Five Hundred Thousand Dollars ($12,500,000) (the "Initial Escrow Deposit") in escrow Shares with JPMorgan Chase Bank as escrow agent (the "Escrow Agent"), pursuant to the terms of an escrow agreement substantially in the form of Exhibit 3.05(c) hereto (the "Escrow Agreement"), among the Parent, the Shareholder Representative and the Escrow Agent, as security for the Stockholders' indemnification obligations arising under Article 9 hereof, for payments to the Parent pursuant to Section 3.06(d), if any, and as satisfaction for other amounts contemplated by this Agreement. The amount held in escrow by the Escrow Agent at any time and from time to time shall be referred to as the "Escrow Amount". Six (6) months after the Closing Date, the Escrow Agent shall release and deliver to hold the Shareholder Representative for distribution to Escrow Shares in a separate account (the Stockholders a portion “Escrow Fund”), which shall be governed by the terms of the Escrow Amount equal Agreement, for purposes of the payment to the Escrow Amount at such time, if any, less Buyer or the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9, less Seven Million Five Hundred Thousand Dollars ($7,500,000). Eighteen (18) months after the Closing Date, the Escrow Agent shall release and deliver to the Shareholder Representative for distribution to the Stockholders the remaining portion of the Escrow Amount at such time, if any, less the amount of any pending indemnification claims properly made by a Purchaser Indemnified Party pursuant to Article 9. As any pending indemnification claims are resolved, the Escrow Agent shall, after making any payment related to such claims, release and deliver to the Shareholder Representative for distribution to the Stockholders any amounts remaining from the amounts reserved for such claims. All amounts delivered to the Shareholder Representative by the Escrow Agent for distribution to the Stockholders shall be Post-Closing Merger Consideration or additional Appraisal ConsiderationStockholders’ Representative, as the case may be, and allocated among of indemnification claims of Buyer Indemnitees required by Article IX; and (v) the Stockholders by the Shareholder Representative pro rata in accordance with Section 3.02(a) or paid Company shall cause its legal counsel to deliver to the Surviving Corporation as Appraisal Consideration Buyer an opinion letter relating to the Transaction, in accordance with Section 3.07(c)form and substance reasonably acceptable to the Buyer; (dvi) pay to the holders of Buyer, Merger Sub, the Options such amounts as Stockholders and the Company has negotiated in consideration of the termination of any rights to tax gross-up payments with respect to the OptionsCompany, as set forth on Exhibit 3.05applicable, shall deliver such certificates and other agreements, documents and instruments as reasonably requested by the other Party.