Closing Payments; Filing of Certificate of Merger and Effectiveness. Subject to the fulfillment or waiver of the conditions to the respective obligations of each of the parties set forth in Article X or Article XI, as the case may be, at the Closing (or, with respect to Sections 4.2(a)(iii) and (iv), in connection with the Company’s next regular payroll that is practicable):
(a) Parent shall:
(i) pay, or cause to be paid, the applicable Warrant Closing Amount by wire transfer of immediately available funds to the appropriate Series C Warrant Holder to the bank account or accounts identified by such Series C Warrant Holder in writing at least three Business Days prior to the Closing;
(ii) pay, or cause to be paid, the Transaction Cost Amount to the appropriate third parties set forth in the Closing Calculation Certificate by wire transfer of immediately available funds to the appropriate bank account or accounts identified by the Company in writing at least three Business Days prior to the Closing;
(iii) [intentionally omitted];
(iv) subject to the deduction of all applicable withholding taxes pursuant to Section 3.7, pay, or cause to be paid, the Management Incentive Payment Amount payable in respect of the Closing by wire transfer of immediately available funds to the members of Company Management (through the Company’s next regular payroll that is practicable), and in such amounts set forth by the Company in a notice received by Parent at least three Business Days prior to the Closing; provided, however, that for such tax withholding purposes, [*] shall each, by reason of his status as an officer of the Company, be treated as an employee (in addition to [*]) subject to federal and state income, FICA and other employee tax withholding on his share of the Management Incentive Payment Amount payable in respect of the Closing and provided, further, that payment to each member of Company Management of his share of the Management Incentive Payment Amount payable in respect of the Closing shall in each instance be subject to the additional terms and conditions of the 2007 Management Incentive Plan (or, with respect to [*], the Continuing Chairman Agreement) and the Section 409A Letters (including the releases attached thereto) governing his right and entitlement to share in such Management Incentive Payment Amount payable in respect of the Closing;
(v) deposit with U.S. Bank National Association, or such other escrow agent as shall be mutually agreed to by the parties (the “Escrow Agent”) and named in the Escrow Agreement in sub...
Closing Payments; Filing of Certificate of Merger and Effectiveness. Subject to the fulfillment or waiver of the conditions to the respective obligations of each of the parties set forth in Article X or Article XI, as the case may be, at the Closing:
(a) Parent shall:
(i) deposit with U.S. Bank National Association, or such other escrow agent as Parent may designate (the “Escrow Agent”) and named in the Escrow Agreement in substantially the form attached hereto as Exhibit B, with such changes as the Escrow Agent shall reasonably request prior to the Closing (the “Escrow Agreement”), the Indemnity Escrow Amount to be held by the Escrow Agent in accordance with the terms of the Escrow Agreement as security for the indemnification obligations contained in Section 12.1 (including earnings thereon, as set forth in the Escrow Agreement, the “Indemnity Escrow Fund”); and
(ii) deposit with U.S. Bank National Association, or such other exchange agent as shall be mutually agreed to by the parties prior to the Closing (the “Exchange Agent”), pursuant to an Exchange and Paying Agent Agreement entered into among Parent, the Exchange Agent and the Representative (the “Exchange Agent Agreement”), for the benefit of the Stockholders, for exchange in accordance with Article III, through the Exchange Agent, by wire transfer of immediately available funds to the account specified by the Exchange Agent, cash equal to the aggregate amount of cash payable to Stockholders pursuant to Sections 2.1(c) and 2.1(d) (cash deposited with the Exchange Agent by Parent or any Affiliate thereof being referred to as the “Exchange Fund”).
(b) The parties shall cause the Merger to be consummated by filing a certificate of merger (which shall be in form and substance satisfactory to Parent), executed and acknowledged in accordance with the Laws of the State of Delaware, in the office of the Secretary of State of the State of Delaware. The Merger shall become effective upon such filing as provided by the DGCL. The time of the effectiveness of the Merger is herein called the “Effective Time.”
