Common use of Closing Payment Schedule Clause in Contracts

Closing Payment Schedule. At the Closing, Target shall deliver to Acquiror a definitive closing payment schedule (the “Closing Payment Schedule”) certified by the Chief Executive Officer and Chief Financial Officer of Target (solely in their capacities as such) and accurately setting forth: (i) the name of each stockholder of Target immediately prior to the Effective Time; (ii) the number, class and series of shares of Target Capital Stock held by each such stockholder immediately prior to the Effective Time; (iii) the name of each holder of Target Options and the Target Warrant immediately prior to the Effective Time; (iv) the number of shares of Target Common Stock subject to Out-of-the-Money Target Options held by each such holder immediately prior to the Effective Time; (v) the number of shares of Target Preferred Stock subject to the Target Warrant; (vi) the aggregate Target Warrant Merger Consideration which the holder of the Target Warrant is eligible to receive; (vii) the aggregate Merger Consideration which each Securityholder is eligible to receive, including the allocation of Cash Merger Consideration and Stock Merger Consideration for each such holder; (viii) the number of Additional Shares which may become issuable to each holder of Target Preferred Stock under the terms of this Agreement (estimated based on the Deemed Value of such shares); (ix) the calculation of the Merger Consideration, including the Estimated Working Capital, the Target Warrant Merger Consideration and the number of shares of Target Common Stock into which each share of Target Preferred Stock is convertible into immediately prior to the Effective Time; (x) a breakdown by individual or entity and amounts of the Transaction Expenses and an indication as to whether such amounts have been paid; (xi) the number of Escrow Shares and the amount of the Management Cash Amount, the Securityholder Cash Amount and Agent Escrow Amount, if any, withheld on behalf of each Securityholder, (xii) each Securityholder’s status as an Accredited Investor based upon completion of an Accredited Investor Questionnaire (to the extent completed by such Securityholder and submitted to Target), and (xiii) each Securityholder’s Pro Rata Portion. In addition, the Closing Payment Schedule shall reflect the foregoing information with respect to LLC Members to the extent applicable. The Closing Payment Schedule shall be subject to update by the Securityholders’ Agent, with Acquiror’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, from time to time after the Closing to reflect any Dissenting Shares, issuance of Additional Shares and/or distribution of the right to receive any Merger Consideration by the LLC Stockholders to the LLC Members and, in each case, any corresponding changes (neither such updates nor the information updated shall be deemed inaccuracies in the Closing Payment Schedule). Notwithstanding the foregoing, in no event shall Acquiror be required to acknowledge an LLC Member as a Securityholder hereunder or cause the Paying Agent to deliver an applicable portion of the LLC Stockholder’s Merger Consideration to an LLC Member unless and until such LLC Member has completed transfer documentation agreeing to be bound by the terms and conditions of the Letter of Transmittal pursuant to letter agreements in substantially the form attached hereto as Exhibits I-1 and I-2, which include (i) an agreement to become subject to the indemnity obligations set forth in Section 8 of this Agreement, (ii) to the extent applicable, a representation that such LLC Member is an Accredited Investor, and (iii) such other documentation as reasonably requested by the Paying Agent (the “LLC Member Agreements”).

Closing Payment Schedule. (a) At least two (2) Business Days prior to the ClosingClosing Date, Target the Company shall deliver to Acquiror Parent and the Payment Agent a definitive closing payment schedule (the “Closing Payment Schedule”) certified in the format of, and using the formulae set forth in, an Excel spreadsheet previously reviewed by the Chief Executive Officer parties, a copy of which is attached as attached Schedule 2.08, executed by an executive officer of the Company, which schedule shall reflect all payments to which the Shareholders, the holders of Company Stock Options and Chief Financial Officer the holders of Target (solely Company Warrants shall be entitled at Closing in their capacities accordance with this Article 2 and shall set forth the following and contain a representation and warranty of the Company as such) to the accuracy and accurately setting forth: completeness thereof, in each case as of the Closing: (i) the name and mailing address (or other delivery instructions reasonably acceptable to Parent and the Payment Agent) of (A) each holder of record of outstanding shares of Company Stock immediately prior to the Effective Time (each, a “Closing Date Shareholder”), (B) each holder of unexpired and unexercised in-the-money Company Stock Options outstanding immediately prior to the Effective Time (each, a “Closing Date Optionholder”) and (C) each holder of unexpired and unexercised Company Warrants outstanding immediately prior to the Effective Time (each, a “Closing Date Warrantholder”) (ii) (A) the number of shares of Company Stock of each stockholder class and series held by each Closing Date Shareholder immediately prior to the Effective Time, (B) the aggregate Initial Allocated Portion payable to each Closing Date Shareholder at the Effective Time and (C) the number and class of Target Dissenting Shares, if any, held by each Closing Date Shareholder immediately prior to the Effective Time; (iii) (A) the number of unexpired and unexercised in-the-money Company Stock Options held by each Closing Date Optionholder immediately prior to the Effective Time, (B) the aggregate Initial Allocated Portion payable to each Closing Date Optionholder at the Effective Time and (C) the aggregate of the exercise prices of the unexpired and unexercised in-the-money Company Stock Options held by each Closing Date Optionholder immediately prior to the Effective Time; and (iiiv) (A) the number, class number of unexpired and series of shares of Target Capital Stock unexercised Company Warrants held by each such stockholder Closing Date Warrantholder immediately prior to the Effective Time; , (iiiB) the name aggregate Initial Allocated Portion payable to each Closing Date Warrantholder at the Effective Time and (C) the aggregate of the exercise prices of the unexpired and unexercised Company Warrants held by each holder of Target Options and the Target Warrant Closing Date Warrantholder immediately prior to the Effective Time; . (ivb) Concurrently with the number delivery of shares the Closing Payment Schedule, the Company also shall deliver to Parent, in such detail as shall be reasonably acceptable to Parent, all information on which the calculations reflected in the Closing Payment Schedule are based. If there are any changes between the date of Target Common Stock subject to Out-of-the-Money Target Options held by each such holder delivery of the Closing Payment Schedule and the Closing Date in any items that are determined as of or immediately prior to the Effective Time; (v) the number of shares of Target Preferred Stock subject to the Target Warrant; (vi) the aggregate Target Warrant Merger Consideration which the holder of the Target Warrant is eligible to receive; (vii) the aggregate Merger Consideration which each Securityholder is eligible to receive, including the allocation of Cash Merger Consideration and Stock Merger Consideration for each such holder; (viii) the number of Additional Shares which may become issuable to each holder of Target Preferred Stock under the terms of this Agreement (estimated based on the Deemed Value of such shares); (ix) the calculation of the Merger Consideration, including the Estimated Working Capital, the Target Warrant Merger Consideration Company shall deliver to Parent and the number of shares of Target Common Stock into which each share of Target Preferred Stock is convertible into immediately prior to Payment Agent at the Effective Time; (x) a breakdown by individual or entity and amounts of the Transaction Expenses and Closing an indication as to whether such amounts have been paid; (xi) the number of Escrow Shares and the amount of the Management Cash Amount, the Securityholder Cash Amount and Agent Escrow Amount, if any, withheld on behalf of each Securityholder, (xii) each Securityholder’s status as an Accredited Investor based upon completion of an Accredited Investor Questionnaire (to the extent completed by such Securityholder and submitted to Target), and (xiii) each Securityholder’s Pro Rata Portion. In addition, the updated Closing Payment Schedule shall reflect the foregoing information with respect to LLC Members to the extent applicablethat reflects such changes. The Any updated Closing Payment Schedule shall be subject to update executed by the Securityholders’ Agent, with Acquiror’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, from time to time after the Closing to reflect any Dissenting Shares, issuance of Additional Shares and/or distribution an executive officer of the right to receive any Merger Consideration by Company and shall contain a representation and warranty of the LLC Stockholders Company as to the LLC Members andaccuracy and completeness thereof, in each case, any corresponding changes (neither such updates nor the information updated shall be deemed inaccuracies in the Closing Payment Schedule). Notwithstanding the foregoing, in no event shall Acquiror be required to acknowledge an LLC Member case as a Securityholder hereunder or cause the Paying Agent to deliver an applicable portion of the LLC Stockholder’s Merger Consideration to an LLC Member unless and until such LLC Member has completed transfer documentation agreeing to be bound by the terms and conditions of the Letter of Transmittal pursuant to letter agreements in substantially the form attached hereto as Exhibits I-1 and I-2, which include (i) an agreement to become subject to the indemnity obligations set forth in Section 8 of this Agreement, (ii) to the extent applicable, a representation that such LLC Member is an Accredited Investor, and (iii) such other documentation as reasonably requested by the Paying Agent (the “LLC Member Agreements”)Closing.

Closing Payment Schedule. At the Closing, Target shall deliver to Acquiror the Representative Confirmation Letters and a definitive closing payment schedule (the “Closing Payment Schedule”) ), certified by the Chief Executive Officer and Chief Financial Officer of Target, in the form set forth in Section 2.9 of the Target (solely in their capacities as such) Disclosure Schedule and accurately setting forth: (i) the name of each stockholder holder of Target Capital Stock immediately prior to the Effective Time; , (ii) the number, class and series of shares of Target Capital Stock held by each such stockholder holder immediately prior to the Effective Time; (iii) the pro rata amount of the Series A Aggregate Liquidation Preference Amount which each holder of Series A Preferred Stock is eligible to receive; (iv) the pro rata amount of the Series B Aggregate Liquidation Preference Amount which each holder of Series B Preferred Stock is eligible to receive; (v) the name of each holder of Target Options and the Target Warrant Restricted Stock immediately prior to the Effective Time; (ivvi) the calculation of the Merger Consideration taking into consideration any Closing Adjustment Amounts; (vii) the number of shares of Target Common Stock subject to Out-of-the-Money Target Options and Target Restricted Stock held by each such holder of Target Options and Target Restricted Stock immediately prior to the Effective Time; (v) the number of shares of Target Preferred Stock subject to the Target Warrant; (vivii) the aggregate Target Warrant Merger Per Share Consideration which the each holder of the Target Warrant Capital Stock, Target Options and Target Restricted Stock is eligible to receive; (vii) the aggregate Merger Consideration which each Securityholder is eligible to receive, including the allocation of Cash Merger Consideration and Stock Merger Consideration for each such holder; (viii) the number Escrow Pro Rata Share for each Security Holder for purposes of Additional Shares which may become issuable any payments to be made pursuant to Section 2.15(e) and Section 9.2(b), (ix) the amount to be contributed to the Indemnification Escrow, the Purchase Price Adjustment Escrow and the Stockholders’ Agent Expense Escrow on behalf of each Security Holder pursuant to Section 2.9 and (x) for each holder of Target Preferred Stock under the terms of this Agreement (estimated based on the Deemed Value of such shares); (ix) the calculation of the Merger Consideration, including the Estimated Working CapitalStock, the Target Warrant Merger Consideration and the number of shares of Target Common Stock into which each share of Target Preferred Stock is convertible into immediately prior to the Effective Time; (x) a breakdown by individual or entity and amounts of the Transaction Expenses and an indication as to whether such amounts have been paid; (xi) the number of Escrow Shares and the aggregate amount of the Management Cash Series A Aggregate Liquidation Preference Amount, the Securityholder Cash Series B Aggregate Liquidation Preference Amount and Agent Escrow Amount, if any, withheld on behalf of each Securityholder, (xii) each Securityholder’s status as an Accredited Investor based upon completion of an Accredited Investor Questionnaire (to the extent completed by such Securityholder and submitted to Target), and (xiii) each Securityholder’s Pro Rata Portion. In addition, the Closing Payment Schedule shall reflect the foregoing information with respect to LLC Members to the extent applicable. The Closing Payment Schedule shall be subject to update by the Securityholders’ Agent, with Acquiror’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, from time to time after the Closing to reflect any Dissenting Shares, issuance of Additional Shares and/or distribution of the right to receive any Merger Consideration by the LLC Stockholders to the LLC Members and, in each case, any corresponding changes (neither such updates nor the information updated shall be deemed inaccuracies in the Closing Payment Schedule). Notwithstanding the foregoing, in no event shall Acquiror be required to acknowledge an LLC Member as a Securityholder hereunder or cause the Paying Agent to deliver an applicable portion of the LLC Stockholder’s Merger Per Share Consideration to an LLC Member unless be paid in cash and until such LLC Member has completed transfer documentation agreeing to be bound by the terms and conditions of the Letter of Transmittal pursuant to letter agreements in substantially the form attached hereto as Exhibits I-1 and I-2, which include (i) an agreement to become subject to the indemnity obligations set forth in Section 8 of this Agreement, (ii) to the extent applicable, a representation that such LLC Member is an Accredited Investor, and (iii) such other documentation as reasonably requested by the Paying Agent (the “LLC Member Agreements”)Acquiror Common Stock.

Closing Payment Schedule. At (a) Two (2) Business Days prior to the Closing, Target the Company shall deliver to Acquiror Parent a definitive closing payment schedule (the “Closing Payment Schedule”) ), duly certified by the Chief Executive Financial Officer and Chief Financial Officer the Secretary of Target (solely in their capacities the Company as such) and accurately setting forth: forth (ito the extent practicable as of such date): (1) the name of each stockholder of Target immediately prior to the Effective Time; Estimated Working Capital; (ii2) the number, class Transaction Expenses and series of shares of Target Capital Stock held by each such stockholder immediately prior to their status as paid or accrued; (3) the Effective Time; Aggregate Exercise Amount; (iii4) the Aggregate Liquidation Preference; (5) the Fully Diluted Company Share Number; (6) the Preliminary Residual Per Share Amount; (7) the name of each holder of Target record of outstanding shares of Company Capital Stock immediately prior to the Effective Time (after giving effect to any exercises of Company Options prior to the Effective Time) (each, a “Closing Date Shareholder”); (8) the number of shares of Company Capital Stock of each class and the Target Warrant series held by each Closing Date Shareholder immediately prior to the Effective Time; ; (iv9) the number of Dissenting Shares held by each Closing Date Shareholder; (10) the cash amount, if any, to be withheld and contributed to the Escrow Fund on behalf of each Closing Date Shareholder pursuant to Section 2.5(c); (11) the consideration that each Closing Date Shareholder is entitled to receive pursuant to Section 2.5(a) (both before and after deduction of the cash amounts to be withheld and contributed to the Escrow Fund on behalf of such Closing Date Shareholder pursuant to Section 2.5(c)); (12) the name of each holder of outstanding and unexercised Company Options immediately prior to the Effective Time (each, a “Closing Date Option Holder”); (13) the number of shares of Target Company Common Stock subject issuable to Out-of-the-Money Target Options held by each such holder immediately prior to the Effective Time; Closing Date Option Holder; (v) the number of shares of Target Preferred Stock subject to the Target Warrant; (vi14) the aggregate Target Warrant Merger Consideration which the holder of the Target Warrant is eligible to receive; Exercise Price payable by each Closing Date Option Holder; (vii15) the aggregate Merger Consideration which each Securityholder is eligible to receive, including the allocation of Cash Merger Consideration and Stock Merger Consideration for each such holder; (viii) the number of Additional Shares which may become issuable to each holder of Target Preferred Stock under the terms of this Agreement (estimated based on the Deemed Value of such shares); (ix) the calculation of the Merger Consideration, including the Estimated Working Capital, the Target Warrant Merger Consideration and the number of shares of Target Common Stock into which each share of Target Preferred Stock is convertible into immediately prior to the Effective Time; (x) a breakdown by individual or entity and amounts of the Transaction Expenses and an indication as to whether such amounts have been paid; (xi) the number of Escrow Shares and the amount of the Management Cash Amount, the Securityholder Cash Amount and Agent Escrow Amountcash amount, if any, to be withheld and contributed to the Escrow Fund on behalf of each Securityholder, Closing Date Option Holder pursuant to Section 2.5(c); and (xii16) the consideration that each Securityholder’s status as an Accredited Investor based upon completion Closing Date Option Holder is entitled to receive pursuant to Section 2.6 (both before and after deduction of an Accredited Investor Questionnaire (the cash amounts to be withheld and contributed to the extent completed by Escrow Fund on behalf of such Securityholder and submitted Closing Date Option Holder pursuant to TargetSection 2.5(c)). (b) Concurrent with delivery of the Closing Payment Schedule, and (xiii) each Securityholder’s Pro Rata Portion. In additionthe Company shall also deliver to Parent, in such detail as shall be reasonably acceptable to Parent, all information on which the calculations reflected in the Closing Payment Schedule shall reflect the foregoing information with respect to LLC Members to the extent applicable. The Closing Payment Schedule shall be subject to update by the Securityholders’ Agent, with Acquiror’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, from time to time after the Closing to reflect any Dissenting Shares, issuance of Additional Shares and/or distribution of the right to receive any Merger Consideration by the LLC Stockholders to the LLC Members and, in each case, any corresponding changes (neither such updates nor the information updated shall be deemed inaccuracies in the Closing Payment Schedule). Notwithstanding the foregoing, in no event shall Acquiror be required to acknowledge an LLC Member as a Securityholder hereunder or cause the Paying Agent to deliver an applicable portion of the LLC Stockholder’s Merger Consideration to an LLC Member unless and until such LLC Member has completed transfer documentation agreeing to be bound by the terms and conditions of the Letter of Transmittal pursuant to letter agreements in substantially the form attached hereto as Exhibits I-1 and I-2, which include (i) an agreement to become subject to the indemnity obligations set forth in Section 8 of this Agreement, (ii) to the extent applicable, a representation that such LLC Member is an Accredited Investor, and (iii) such other documentation as reasonably requested by the Paying Agent (the “LLC Member Agreements”)are based.

Closing Payment Schedule. At (a) Two (2) Business Days prior to the ClosingClosing Date, Target the Company shall deliver to Acquiror Parent a definitive closing payment schedule (the “Closing Payment Schedule”) ), duly certified by the Chief Executive Officer and Chief Financial Officer President of Target (solely in their capacities the Company as such) and accurately setting forth: forth (to the extent practicable as of such date): (i) an itemized list of the Company Transaction Expenses and their status as paid or accrued (and the Persons to whom unpaid Company Transaction Expenses are owed); (ii) reserved; (iii) the Closing Net Cash Consideration; (iv) the name and address of each stockholder Shareholder of Target record of issued and outstanding Common Shares immediately prior to the Effective Time (after giving effect to any exercises of Options prior to the Effective Time) (each, a “Closing Date Shareholder”); (v) the number of Common Shares held by each Closing Date Shareholder immediately prior to the Effective Time; ; (iivi) the number, class and series number of shares of Target Capital Stock Dissenting Shares held by each such stockholder Closing Date Shareholder; (vii) the Common Cash Price Per Share; (viii) the Common Stock Price Per Share; (ix) the name of each Option Holder of outstanding and unexercised In-the-Money Options immediately prior to the Effective Time; Time (iii) the name of each holder of Target Options and the Target Warrant immediately prior to the Effective Time; each, a “Closing Date In-the-Money Option Holder”); (ivx) the number of shares of Target Common Stock subject Shares issuable to Out-ofeach Closing Date In-the-Money Target Options held by each such holder immediately prior to the Effective Time; (v) the number of shares of Target Preferred Stock subject to the Target Warrant; (vi) the aggregate Target Warrant Merger Consideration which the holder of the Target Warrant is eligible to receive; (vii) the aggregate Merger Consideration which each Securityholder is eligible to receive, including the allocation of Cash Merger Consideration and Stock Merger Consideration for each such holder; (viii) the number of Additional Shares which may become issuable to each holder of Target Preferred Stock under the terms of this Agreement (estimated based on the Deemed Value of such shares); (ix) the calculation of the Merger Consideration, including the Estimated Working Capital, the Target Warrant Merger Consideration and the number of shares of Target Common Stock into which each share of Target Preferred Stock is convertible into immediately prior to the Effective Time; (x) a breakdown by individual or entity and amounts of the Transaction Expenses and an indication as to whether such amounts have been paid; Option Holder; (xi) the number of Escrow Shares and aggregate option exercise price payable by each Closing Date In-the-Money Option Holder; (xii) the per share Option Consideration payable with respect each Common Share held by each Closing Date In-the-Money Option Holder; (xiii) the amount of Option Merger Consideration that each Closing Date In-the-Money Option Holder is entitled to receive pursuant to Section 3.02 (and the Management Cash Amountother information required pursuant to Section 3.04(c)); and (ix) an itemized list of the Closing Indebtedness Amount and the Persons to whom any such Closing Indebtedness Amount is owed. (b) Concurrent with delivery of the Closing Payment Schedule, the Securityholder Cash Amount and Agent Escrow Amount, if any, withheld Company shall also deliver to Parent a schedule setting forth in reasonable detail the information on behalf of each Securityholder, (xii) each Securityholder’s status as an Accredited Investor based upon completion of an Accredited Investor Questionnaire (to which the extent completed by such Securityholder and submitted to Target), and (xiii) each Securityholder’s Pro Rata Portion. In addition, calculations reflected in the Closing Payment Schedule shall reflect the foregoing information with respect to LLC Members to the extent applicableare based. The parties agree that Parent, Merger Sub and the Surviving Entity shall be entitled to rely on the Closing Payment Schedule shall be subject to update by the Securityholders’ Agent, with Acquiror’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, from time to time after the Closing to reflect any Dissenting Shares, issuance of Additional Shares and/or distribution of the right to receive any Merger Consideration by the LLC Stockholders to the LLC Members and, in each case, any corresponding changes (neither such updates nor the information updated shall be deemed inaccuracies in the Closing Payment Schedule). Notwithstanding the foregoing, in no event shall Acquiror be required to acknowledge an LLC Member as a Securityholder hereunder or cause the Paying Agent to deliver an applicable portion of the LLC Stockholder’s Merger Consideration to an LLC Member unless and until such LLC Member has completed transfer documentation agreeing to be bound by the terms and conditions of the Letter of Transmittal pursuant to letter agreements in substantially the form attached hereto as Exhibits I-1 and I-2, which include (i) an agreement to become subject to the indemnity obligations set forth in Section 8 of this Agreement, (ii) to the extent applicable, a representation that such LLC Member is an Accredited Investor, and (iii) such other documentation as reasonably requested by the Paying Agent (the “LLC Member Agreements”)making payments under Article III.