Common use of Closing Payments Clause in Contracts

Closing Payments. At the Closing, in consideration for the Shares and the Sellers’ performance of the other covenants and agreements herein: (a) Purchaser shall pay by wire transfer of immediately available funds the following amounts: (i) first, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to the Closing Date in accordance with the list of the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not later than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all such estimated Seller Expenses; (ii) second, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, an aggregate amount (the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d). (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, shall not be deemed to be a breach or violation of the Effective Date Covenants by the Company.

Closing Payments. At the Closing, in consideration for the Shares and the Sellers’ performance of the other covenants and agreements herein: (a) The completion of the Standby Purchase (the “Closing”) shall take place at the offices of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP in New York, New York, on the date on which all of the conditions to the occurrence of the Effective Date (other than the condition of receipt of payment from the Standby Purchasers of the Purchase Price in respect of the Standby Purchase) have been satisfied or waived and all of the conditions set forth under Sections 6 and 7 have been satisfied or waived by the Company or the Standby Purchasers (as applicable), or at such other location or on such other date as may be mutually agreed by the Company and the Standby Purchasers (the day on which the Closing takes place being the “Closing Date”). The Closing shall be deemed to be effective on the Closing Date and all documents and instruments related to the Closing will be deemed to have been delivered simultaneously on the Closing Date. The completion of the Post Effective Standby Purchase (the “Post Effective Closing”) shall take place at the offices of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP in New York, New York within five Business Days after the Standby Purchasers’ receipt of the notification pursuant to Section 2.1(d) or at such other location or on such other date as may be mutually agreed by the Company and the Standby Purchasers. (b) At each of the Closing and the Post Effective Closing, each Standby Purchaser shall hereby agrees, severally, but not jointly, to pay the Company the aggregate Subscription Price for its Standby Percentage of the Standby Purchase Shares or Post Effective Standby Purchase Shares, as applicable, to be purchased by such Standby Purchaser hereunder (the aggregate of such payments by all of the Standby Purchasers, the “Purchase Price”) by wire transfer of immediately available funds the following amounts: (i) first, to such an account or accounts designated in writing by the Company to Purchaser not fewer than at least three Business Days prior to the Closing Date in accordance with the list of the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not later than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all such estimated Seller Expenses; (ii) second, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, an aggregate amount (the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d). (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”)scheduled payment date. (c) MHR At each of the Closing and the Post Effective Closing, upon receipt in full of the aggregate Subscription Price for each Standby Purchaser’s Standby Percentage of the Standby Purchase Shares or Post Effective Standby Purchase Shares to be purchased, as the case may be, by each Standby Purchaser hereunder, the Company shall deliver to such Standby Purchaser (or its designees) stock certificates or evidence of book-entry record ownership representing the Escrow AgentStandby Purchase Shares or Post Effective Standby Purchase Shares, on behalf of as the Sellers and Purchasercase may be, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained issued by the Company to such Standby Purchaser pursuant to this Agreement, free and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit clear of any Seller Liens, except Liens created by or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including otherwise resulting from actions by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenantssuch Standby Purchaser.”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, shall not be deemed to be a breach or violation of the Effective Date Covenants by the Company.

Closing Payments. (a) At the Closing, in consideration for Purchaser shall, or shall cause the Shares and the Sellers’ performance Merger Sub to pay on behalf of the other covenants and agreements herein:Company, to such accounts designated in any Payoff Letter with respect to the Credit Facility delivered at least two (2) Business Days prior to Closing, the amount(s) set forth therein. (ab) At the Closing, Purchaser shall, or shall cause the Merger Sub to, pay out of the Closing Date Class A Merger Consideration to the Paying Agent, by wire transfer of immediately available funds funds, an amount equal to the following amounts: sum of (i) firstthe Aggregate Common Stock Closing Payment Amount plus (ii) the Aggregate Preferred Stock Closing Payment Amount payable to the Stockholders entitled to a portion of such amount, as set forth in the Pre-Closing Statement, to such the account designated to Purchaser by the Paying Agent no later than two (2) Business Days prior to the Closing. (c) At the Closing, Purchaser shall, or shall cause the Merger Sub to, pay the Class B Merger Consideration and the Class C Merger Consideration, in each case, by wire transfer of immediately available funds, to the accounts designated to Purchaser by the Company no later than two (2) Business Days prior to the Closing. (d) At the Closing, Purchaser shall, or shall cause the Merger Sub to, pay out of the Closing Date Class A Merger Consideration to the Company, by wire transfer of immediately available funds, an amount equal to the Aggregate Option Closing Payment Amount payable to the Optionholders entitled to a portion of such amount, as set forth in writing the Pre-Closing Statement to an account designated by the Company to Purchaser not fewer than three Business Days prior to the Closing Date in accordance with the list of the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not no later than three two (2) Business Days prior to the Closing Date. (e) At the Closing, Purchaser shall pay, or shall cause the Surviving Company to pay, by wire transfer of immediately available funds, the aggregate amount required Estimated Transaction Expenses to pay and satisfy in full all such estimated Seller Expenses; (iithe account(s) second, to such account or accounts designated in writing by the Company to on the Pre-Closing Statement. (f) At the Closing, Purchaser not fewer than three Business Days prior shall, or shall cause the Merger Sub to, deposit out of the Closing Date Class A Merger Consideration, by wire transfer of immediately available funds, an amount equal to the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf of the SellersAdjustment Escrow Amount, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests held in the Company as Adjustment Escrow Account in accordance with the terms of the Closing, as set forth in Exhibit A, an aggregate amount (the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d). (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (dg) The Parties intendAt the Closing, understand and agree that they have agreed Purchaser shall, or shall cause the Merger Sub to, transfer, out of the Closing Date Class A Merger Consideration, by wire transfer of immediately available funds, an amount equal to the Stockholder Representative Expense Amount, to the Stockholder Representative Expense Account as designated by the Stockholder Representative on the Pre- Closing Cash Purchase Amount Statement, to be held, used and disbursed by the Depositary Consideration based on an “Effective Date” Stockholder Representative in accordance with the terms of January 1Section 11.15. (h) At the Closing, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes shall transfer, by wire transfer of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such dateimmediately available funds, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions an amount equal to the Company in cash in an aggregate amount of $6,027,543Special Escrow Amount, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth thereinSpecial Escrow Account, shall not be deemed to be a breach or violation held, used and disbursed by Purchaser in accordance with the terms of the Effective Date Covenants by the CompanyArticle 10.

Closing Payments. At the Closing, in consideration for the Shares and the Sellers’ performance of the other covenants and agreements herein: (a) Purchaser shall pay by wire transfer of immediately available funds the following amounts: Not less than five (i5) first, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to the Closing Date in accordance with the list of the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not later than three Business Days prior to the Closing Date, Seller shall deliver to Buyer (x) a written statement in form and substance reasonably acceptable to Buyer and signed by the aggregate Chief Financial Officer of the Seller (the “Closing Estimated Statement”) setting forth the (i) the estimated Working Capital as of the date of the Closing Date (the “Estimated Working Capital”), (ii) (A) the amount, if any, by which the Estimated Working Capital is greater than the Working Capital Target (a “Closing Date Working Capital Surplus”), or (B) the amount, if any, by which the Working Capital Target is greater than the Estimated Working Capital (a “Closing Date Working Capital Deficiency”), (iii) the amount of Indebtedness of Seller, (iv) the amount of the Transaction Expenses, and (v) the resulting estimated Closing Payment (the “Estimated Closing Payment”) based on the estimates described in clauses (i) – (iv). The “Closing Payment” shall be a U.S. Dollar amount equal to the Purchase Price, plus the Closing Date Working Capital Surplus, if any, or minus the Closing Date Working Capital Deficiency, if any (as applicable), minus the Indebtedness of Seller, minus the Transaction Expenses. The Closing Estimated Statement, and each component thereof, shall be prepared in good faith and in a manner consistent with the Working Capital Principles and the applicable definitions of this Agreement and methodologies contained therein. The Closing Estimated Statement shall contain reasonably detailed support for each calculation set forth therein. After delivery of the Closing Estimated Statement, the Seller shall, and shall cause its officers and representatives to, (i) provide reasonable access to the Buyer and its representatives to the books and records and work papers used in the preparation of the Closing Estimated Statement and (ii) cooperate with and assist the Buyer and its representatives in connection with their review of the Closing Estimated Statement and the materials described in clause (i), including (without limitation) making available their senior management employees, accountants and other personnel who were involved in the preparation of the Closing Estimated Statement. Seller shall consider in good faith any revisions Buyer proposes in writing to the Closing Estimated Statement and make appropriate revisions agreed to by Seller to the Closing Estimated Statement in its good faith determination; provided, that each Party acknowledges and agrees that Xxxxx’s proposal of revisions or failure to propose any revisions to the Closing Estimated Statement shall not be deemed to waive or otherwise impair any rights of Buyer pursuant to this Agreement. (b) Subject to the delivery of the items set forth in Section 11.2(d), at the Closing, Buyer shall pay, or cause to be paid, the Purchase Price as follows: (i) to each holder of Indebtedness of Seller pursuant to the Payoff Letters, the amount required to pay and satisfy repay in full all Indebtedness owed to each such estimated Seller Expensesholder on the Closing Date, in cash by wire transfer of immediately available funds in accordance with the wire instructions set forth in the applicable Payoff Letters; (ii) second, to each creditor of Transaction Expenses described in subparts (a) through (c) and subpart (f) within the definition of Transaction Expenses the amount required to pay in full all Transaction Expenses owed to such account or accounts designated creditor on the Closing Date, in cash by wire transfer of immediately available funds in accordance with the wire instructions set forth in the applicable Invoice; (iii) to Seller, the amount attributable to the Transaction Expenses described in subparts (d) through (e) within the definition of Transaction Expenses; (iv) to Seller, the aggregate amount equal to the Estimated Closing Payment. The Estimated Closing Payment shall be payable, in cash by wire transfer of immediately available funds in accordance with the wire instructions delivered by Seller to Buyer in writing by the Company to Purchaser not fewer than three at least two (2) Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, an aggregate amount (the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d). (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, shall not be deemed to be a breach or violation of the Effective Date Covenants by the Company.

Closing Payments. (a) At the Closing, in consideration for the Shares and the Sellers’ performance of the other covenants and agreements herein: (ai) Purchaser only if a Debt Merger Notice has been timely delivered and if the Debt Financing is funded in full as of the date that the Closing is required to occur pursuant to Section 2.1, then immediately following the Debt Merger, the Company shall pay distribute to the Sellers an aggregate amount equal to the Cash Distribution Amount based on each Seller’s Pro Rata Portion, by wire transfer of immediately available funds to the following amounts: (i) first, to such account or accounts designated set forth in writing by the Company to Purchaser not fewer than three Business Days prior to the Closing Date in accordance with the list of the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not later than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all such estimated Seller ExpensesPayment Spreadsheet; (ii) secondBuyer shall pay to the Sellers an aggregate amount equal to the Funded Closing Consideration, by wire transfer of immediately available funds to such the account or accounts designated set forth in writing the Payment Spreadsheet; (iii) immediately following the Debt Merger if the Debt Financing is funded in full as of the date that the Closing is required to occur pursuant to Section 2.1, the Company shall pay, or if the Debt Financing is not so funded, Buyer shall pay in accordance with the Payment Spreadsheet, to the Company’s lenders and other creditors referred to in the Estimated Company Closing Statement (as defined below), cash in amounts set forth in the Estimated Company Closing Statement with respect to any Indebtedness for Borrowed Money to be paid off at Closing, in each case in accordance with the applicable Payoff Letter; (iv) immediately following the Debt Merger if the Debt Financing is funded in full as of the date that the Closing is required to occur pursuant to Section 2.1, the Company shall pay, or if the Debt Financing is not so funded, Buyer shall pay in accordance with the Payment Spreadsheet, to the payees of Company Transaction Expenses which are being paid as of the Closing as contemplated by the Estimated Company to Purchaser not fewer than three Business Days prior Closing Statement and in accordance with the Payment Spreadsheet (each as defined below), cash in amounts set forth in the Payment Spreadsheet by wire transfer of immediately available funds to the Closing Date, respective accounts set forth in the aggregate amount required to pay and satisfy in full all Transaction BonusesPayment Spreadsheet; and (iiiv) third, Buyer shall pay to such account designated in writing to Purchaser by Seller Representative, on behalf of the Sellers, to be delivered ’ Representative the Sellers’ Representative Holdback Amount by Seller Representative wire transfer of immediately available funds to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as account or accounts set forth in Exhibit A, an aggregate amount (on the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d)Payment Spreadsheet. (b) MHR shall deliver The Sellers and the Buyer agree that the amounts referred to Seller Representativein Sections 1.7(a)(i), on behalf of the Sellers, to be delivered by Seller Representative 1.7(a)(ii) and 2.4(f) and any other amounts due or owing to the Sellers in proportion under this Agreement shall be paid to their respective Equity Interests in the Company as applicable Seller based on such Seller’s pro rata portion of the Closing, Transferred Securities as set forth in identified on Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock A (the “Depositary Share ConsiderationPro Rata Portion”) and the Payment Spreadsheet. Each Seller and the Buyer agrees that any amount due or owing by the Sellers under this Agreement, including under Section 2.4(f); provided, howeverwill be made on a several (and not joint) basis based on each Seller’s Pro Rata Portion. For the avoidance of doubt, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, foregoing sentence shall not be deemed to be a breach or violation of the Effective Date Covenants by the Companylimit in any way TAO Parent’s Shortfall Guaranty.

Closing Payments. At the Closing, in consideration for Buyer shall make or cause to be made, by wire transfer of immediately available funds, the Shares following payments (each such payment, a “Closing Payment”) and, as applicable, Buyer and Seller shall take the Sellers’ performance of the other covenants and agreements hereinfollowing actions: (a) Purchaser payment to the account(s) designated by Seller of an aggregate cash amount equal to (A) the Base Purchase Price, plus (B) whether positive or negative, the Estimated Adjustment Amount, minus (C) the Escrow Amount (the “Estimated Closing Purchase Price”), minus (D) the Initial Escrow Release Amount; (b) Buyer and Seller shall pay deliver joint written instructions to the Escrow Agent to release to Seller from the Escrow Account an amount equal to the Escrow Deposit plus all interest and earnings thereon, minus the Escrow Amount (the “Initial Escrow Release Amount”) by wire transfer of immediately available funds to the account designated by Seller (for avoidance of doubt, the Escrow Amount shall be retained in the Escrow Account to be released in accordance with Section 1.4); and (c) payment on behalf of the Company, to the payees thereof (or the Company with respect to Transaction Expenses that are compensatory in nature, in which case such amounts are to be paid through the Company’s payroll system as soon as practicable following amounts: the Closing Date (and in no event later than the next regularly scheduled payroll run of the Company following the Closing Date)) of an aggregate cash amount equal to the amount of all (i) first, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to the Estimated Closing Date in accordance with the list Indebtedness of the Seller Expenses type identified in item (i) of the definition of “Indebtedness,” in the amounts and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”recipients per formal payoff letters pursuant to Section 2.2(b), delivered and (ii) Estimated Closing Transaction Expenses per invoices and wire support provided to Purchaser relating to the Seller Expenses not later than Buyer at least three (3) Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all such estimated Seller Expenses; (ii) second, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to . Each of the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf of the Sellers, to Payments shall be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests made in the Company as of the Closing, amounts and as set forth in Exhibit A, an aggregate amount (the “Pre-Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined Statement delivered pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d)1.4. (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, shall not be deemed to be a breach or violation of the Effective Date Covenants by the Company.

Closing Payments. (i) Not less than two (2) business days prior to the Closing, the Company shall deliver to Parent a reasonably detailed statement (based on the balance sheet and other financial statements of the Company and its Subsidiaries as of October 31, 2016, plus all known changes and adjustments occurring since October 31, 2016) setting forth the Company’s good faith estimates of (i) the Closing Date Net Working Capital (“Estimated Closing Date Net Working Capital”), and (ii) the Transaction Expenses (the “Estimated Transaction Expenses”). (ii) Such statement (the “Estimated Closing Statement”) also shall set forth the amount of the Closing Date Indebtedness, if applicable. The Estimated Closing Statement shall be certified by the Seller and shall be accompanied by such supporting documentation as Parent shall reasonably request. The Company shall make its Representatives available to Parent during the two (2) business days referenced in the first sentence of subsection (a)(i) to respond to any questions or requests that Parent may have with respect to the Estimated Closing Statement. (iii) For purposes of this Agreement, the “Estimated Purchase Price” shall be a cash payment equal to the Base Amount, plus (i) the amount by which the Estimated Closing Date Net Working Capital exceeds the Closing Date Net Working Capital Target, if applicable, minus (ii) the amount by which the Closing Date Net Working Capital Target exceeds the Estimated Closing Date Net Working Capital, if applicable, minus (iii) the Closing Date Indebtedness, and minus (iv) the Estimated Transaction Expenses. (iv) At the Closing, in consideration for the Shares and the Sellers’ performance of the other covenants and agreements herein: (a) Purchaser Parent shall pay to the Seller, by wire transfer of immediately available funds the following amounts: (i) first, to such account or into accounts designated in writing by the Company to Purchaser Seller not fewer less than three Business Days (3) business days prior to the Closing Date in accordance with Date, (i) the list of Estimated Purchase Price, minus (ii) the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser Escrow Amount (the “List of Seller ExpensesAdjusted Estimated Purchase Price”), delivered to Purchaser relating . (v) Subject to the Seller Expenses receipt of customary payoff letters, to the extent the Company has not later than three previously made such payment on or prior to the Closing, at the Closing, (i) Parent shall cause wire transfers of immediately available funds to be made to an account designated by the Bank Lender under the Loan Agreement at least two (2) Business Days prior to the Closing Date, in an amount equal to the aggregate amount required to pay total Indebtedness under the Loan Agreement, together with all other amounts then due and satisfy payable thereunder in full all such estimated Seller Expenses; connection with the termination thereof and (ii) secondat the direction of the Seller, Parent shall cause wire transfers of immediately available funds to such account be made to one or more accounts designated in writing by the Company to Purchaser not fewer than three Business Days Sellers at least two (2) business days prior to the Closing Date, the aggregate amount required to pay and satisfy Date in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf payment of the Sellers, Transaction Expenses that are reflected on the Estimated Closing Statement (including that may be due and owing to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company Lazard (as of the Closing, as set forth in Exhibit A, an aggregate amount (the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(ddefined hereinafter)). (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, shall not be deemed to be a breach or violation of the Effective Date Covenants by the Company.

Closing Payments. At the Closing, in consideration for the Shares and the Sellers’ performance of the other covenants and agreements herein: (a) Purchaser shall pay by wire transfer of immediately available funds the following amounts: (i) first, to such account or accounts designated in writing by Buyer shall pay the Company to Purchaser not fewer than three Business Days prior Adjustment Escrow Amount to the Closing Date Escrow Agent in accordance with the list of the Seller Expenses and related invoices, in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not later than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all such estimated Seller Expenses;Funds Flow Memorandum. (ii) second, Buyer shall pay $250,000 (the “Seller Administrative Expense Fund”) to such an account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to Seller Representative in accordance with the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; andFunds Flow Memorandum. (iii) third, to such account designated in writing to Purchaser by Seller RepresentativeBuyer shall pay, on behalf of the SellersCompany, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests all Closing Indebtedness included in the Company as of Estimated Indebtedness Amount and described in the Closing, as set forth Payoff Letters in Exhibit A, an aggregate amount (accordance with the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d)Payoff Letters. (biv) MHR Buyer shall deliver to Seller Representativepay, on behalf of the SellersCompany, all Seller Transaction Expenses included in Estimated Seller Transaction Expenses and described in the Invoices in accordance with the Invoices; provided that, in addition, any Seller Transaction Expenses to be delivered paid at the Closing and treated as wages to a current or former employee of the Company shall be paid to the Company, which shall pay the applicable payee such amount, less applicable withholding Taxes, through the Company’s payroll system. Buyer shall cause the 2021 Annual Bonuses and the Special Transaction Bonuses to be paid by Seller Representative the Company to its employees, in the amounts approved in the Bonus Authorizing Resolutions, no later than December 31, 2021. (v) Buyer shall pay the Sellers in proportion to their respective Equity Interests in accordance with the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in Funds Flow Memorandum an aggregate amount of $6,027,543equal to the Base Purchase Price, (v) since January 1minus [a] the Adjustment Escrow Amount, 2012 neither minus [b] the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any amount of the actions described in Section 3.18 Seller Administrative Expense Fund, plus [c] the Estimated Cash Amount, minus [d] the Estimated Indebtedness Amount, minus [e] the Estimated Seller Transaction Expenses, plus [f] the amount, if any, by which the Estimated Closing Net Working Capital is greater than the Net Working Capital Target, minus [g] the amount, if any, by which the Estimated Closing Net Working Capital is less than the Net Working Capital Target, minus [h] the Rollover Amount (the items encompassed by this Section 2.2(d) being collectively called collectively, the “Effective Closing Date CovenantsPurchase Price Payments”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), anything in the amounts and contrary in this Agreement, Buyer shall have no liability or other obligation to any Person (including any Seller) in respect of the allocation of the Closing Date Purchase Price Payments to the persons as set forth therein, shall not be deemed to be a breach or violation of extent paid in accordance with the Effective Date Covenants by the CompanyFunds Flow Memorandum.

Closing Payments. At Contemporaneously with the Closingfiling of the Certificate of Merger, Purchaser shall pay or cause to be paid the following amounts by wire transfers of immediately available funds, which payments shall not, in consideration for the Shares and aggregate, exceed the Sellers’ performance of the other covenants and agreements hereinAdjusted Total Merger Consideration: (a) to each Preferred Stockholder holding a Stock Certificate that immediately prior to the Effective Time represented Outstanding Preferred Shares and who has delivered to the Purchaser shall pay by wire transfer a completed and duly executed Letter of immediately available funds Transmittal and such Stock Certificate prior to the following amounts: Closing, an amount equal to the product of (i) firstthe number of Outstanding Preferred Shares previously represented by such Stock Certificate, multiplied by (ii) the Preferred Stock Per Share Total Merger Consideration for each such share; (b) to each Common Stockholder holding a Stock Certificate that immediately prior to the Effective Time represented Outstanding Common Shares and who has delivered to the Purchaser a completed and duly executed Letter of Transmittal and such account or accounts designated in writing Stock Certificate prior to the Closing, an amount equal to the product of (i) the number of Outstanding Common Shares previously represented by such Stock Certificate, multiplied by (ii) the Company Common Stock Per Share Merger Consideration; and (c) to each Optionholder who has delivered to the Purchaser not fewer a completed and duly executed Option Surrender Agreement prior to the Closing, an amount equal to the aggregate Option Consideration for the Outstanding In-the-Money Option Shares surrendered pursuant to the Option Surrender Agreement. Not later than three (3) Business Days prior to Closing, the Company shall provide a detailed schedule (inclusive of wire instructions) as to all payments required at Closing Date under this Section 2.11. In addition to the Common Stock Per Share Merger Consideration and the Preferred Stock Per Share Merger Consideration payable under this Section 2.11, the holders of the Shares and Options may become entitled to Additional Per Share Merger Consideration in accordance with Section 11.12. Any such Additional Per Share Merger Consideration shall be paid by the list Escrow Agent to holders of the Seller Expenses Shares and related invoices, Options entitled thereto in form reasonably acceptable to Purchaser (the “List of Seller Expenses”), delivered to Purchaser relating to the Seller Expenses not later than three Business Days prior to the Closing Date, the aggregate amount required to pay accordance with Section 11.12 and satisfy in full all such estimated Seller Expenses; (ii) second, to such account or accounts designated in writing by the Company to Purchaser not fewer than three Business Days prior to the Closing Date, the aggregate amount required to pay and satisfy in full all Transaction Bonuses; and (iii) third, to such account designated in writing to Purchaser by Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, an aggregate amount (the “Closing Cash Purchase Amount”) equal to (A) the Aggregate Cash Purchase Price, minus (B) the sum of (x) the amount paid pursuant to clauses (i) and (ii) above, (y) the Fractional Share Elimination Cost determined pursuant to Section 2.2(b) and (z) the sum of any amounts relating to breaches of the Effective Date Covenants set forth in Section 2.2(d). (b) MHR shall deliver to Seller Representative, on behalf of the Sellers, to be delivered by Seller Representative to the Sellers in proportion to their respective Equity Interests in the Company as of the Closing, as set forth in Exhibit A, certificates evidencing 2,586,850 Depositary Shares representing an interest in an aggregate of 2,586.85 shares of Series E Preferred Stock (the “Depositary Share Consideration”); provided, however, the number of Depositary Shares will be divided among the Sellers so each will receive such Seller’s proportion of the Depositary Share Consideration rounded up to the nearest whole Depositary Share and the Closing Cash Purchase Amount will be reduced accordingly to account for the upward adjustment to the whole number of depositary shares (the “Fractional Share Elimination Cost”). (c) MHR shall deliver to the Escrow Agent, on behalf of the Sellers and Purchaser, certificates evidencing 188,000 Depositary Shares representing an interest in an aggregate of 188 shares of the Series E Preferred Stock (the “Escrow Deposit”) for deposit pursuant to the Escrow Agreement. (d) The Parties intend, understand and agree that they have agreed on the Closing Cash Purchase Amount and the Depositary Consideration based on an “Effective Date” of January 1, 2012, and therefore, except as expressly provided in the Precedence Agreements, (i) the Company and its Subsidiaries (including for purposes of this Section 2.2(d) the Non-Acquired Entities) shall be treated in all respects as having been operated solely for the benefit of Purchaser from and after such date, (ii) the Company and its Subsidiaries have operated their business in the ordinary course since January 1, 2012, (iii) all profits resulting from the Company’s and its Subsidiaries’ operations from and after January 1, 2012 belong exclusively to Purchaser and therefore have been retained by the Company and its Subsidiaries since such date, (iv) since January 1, 2012, the Sellers have made additional capital contributions to the Company in cash in an aggregate amount of $6,027,543, (v) since January 1, 2012 neither the Company nor its Subsidiaries have made any dividends or distributions of cash, cash equivalents or other property to or for the benefit of any Seller or any Affiliate thereof, (vi) since January 1, 2012 neither the Company nor its Subsidiaries have expended or disposed of any cash, cash equivalents or other property outside the ordinary course of business, including by way of example and not by way of limitation, reaching an agreement to settle any Proceeding or through any of the actions described in Section 3.18 (the items encompassed by this Section 2.2(d) being collectively called the “Effective Date Covenants”). Notwithstanding the foregoing, the Parties agree that the payments set forth in Schedule 2.2(d), in the amounts and to the persons as set forth therein, shall not be deemed to be a breach or violation of the Effective Date Covenants by the Company.