Parent to Provide Consideration. Subject to the provisions of Sections 5.13(c)(ii) and 7.3 hereof relating to escrow arrangements, promptly following the Effective Time, Parent shall make available in the form of immediately available funds to (i) the Paying Agent for exchange in accordance with this ARTICLE I the cash payable at the Effective Time to the Stockholders pursuant to Section 1.6(b) hereof in exchange for outstanding shares of Company Common Stock and (ii) the Surviving Corporation the Option Merger Consideration payable at the Effective Time to the Optionholders pursuant to Section 1.6(c); provided, however, that Parent shall (x) deposit into (A) the Escrow Fund the Merger Consideration that comprises the Escrow Amount out of the Merger Consideration pursuant to Section 1.6 hereof, (B) the Sales Tax Escrow Fund the Merger Consideration that comprises the Sales Tax Escrow Amount out of the Merger Consideration pursuant to Section 1.6 hereof, (C) the Stockholder Representative Fund the Merger Consideration that comprises the Stockholder Representative Amount (as reduced by all applicable income and employment Tax withholdings) out of the Merger Consideration pursuant to Section 1.6 hereof and (D) the Closing Tax Escrow Fund the Merger Consideration that comprises the Closing Tax Amount out of the Merger Consideration pursuant to Section 1.6 hereof and (y) pay directly on the Closing Date, by wire transfer of immediately available funds, the cash payable at the Effective Time pursuant to Section 1.6 hereof to such Stockholders who have theretofore delivered to Parent a properly completed Letter of Transmittal (as defined below) and the related Company Stock Certificates and are entitled to receive in excess of $500,000 of cash at the Effective Time pursuant to Section 1.6 hereof. The Pro Rata Portion of the consideration comprising the Escrow Amount shall be deemed to be contributed to the Escrow Fund, the Pro Rata Portion of the consideration comprising the Sales Tax Escrow Amount shall be deemed to be contributed to the Sales Tax Escrow Fund, the Pro Rata Portion of the consideration comprising the Closing Tax Escrow Amount shall be deemed to be contributed to the Closing Tax Escrow Fund and the Pro Rata Portion of the consideration comprising the Stockholder Representative Amount (as reduced by all applicable income and employment Tax withholdings) shall be deemed to be contributed to the Stockholder Representative Fund with respect to each such Escrow Participant.
Parent to Provide Consideration. Subject to the provisions of Section 10.3(a) relating to escrow arrangements, promptly following the Effective Time, Parent shall deliver to Acquiom Financial, LLC (the “Paying Agent”):
(i) the Estimated Closing Consideration; provided, however, that Parent shall deliver to the Escrow Agent the portion of the Estimated Closing Consideration that comprises the Escrow Amounts otherwise deliverable to the Securityholders pursuant to Section 1.6. The Escrow Contribution shall be deemed to be contributed to the Escrow Fund with respect to each such Escrow Participant;
(ii) the amount of the Transaction Expenses to be paid to the recipients of Transaction Expenses pursuant to Section 8.4, as set forth in the Estimated Closing Certificate; and
(iii) the amount of the Company Debt to be paid at the Closing as set forth in each executed payoff letter.
Parent to Provide Consideration. Upon the Effective Time, Parent shall make available to the Exchange Agent for exchange in accordance with this ARTICLE I the cash payable at the Effective Time pursuant to SECTION 1.6 hereof in exchange for outstanding Company Shares. Prior to the payment of any consideration to shareholders of the Company pursuant to this Agreement that becomes payable after the Effective Time, Parent shall make available to the Exchange Agent the cash then payable as set forth in this Agreement.
Parent to Provide Consideration. Promptly following the Effective Time, Parent shall make available for exchange in accordance with this Article I that portion of the Merger Consideration issuable pursuant to Section 1.6 hereof in exchange for outstanding Company Securities, provided, however, that Parent shall deposit into the Escrow Fund the Escrow Shares out of the aggregate Merger Consideration otherwise issuable to the Principal Shareholders and the Principal Shareholder Affiliates pursuant to Section 1.6 hereof. Parent shall be deemed to have deposited each Principal Shareholder’s and each Principal Shareholder Affiliate’s Pro Rata Portion of the Escrow Shares into the Escrow Fund at such time, rounded to the nearest whole share.
Parent to Provide Consideration. The Merger Consideration will be paid by Parent at Closing via wire transfer of immediately available funds as follows:
(i) the sum of the Senior Loan Payoff Amount to Xxxxx Fargo Foothill, LLC, as agent for the senior lenders for full and complete payment of the Senior Credit Agreement;
(ii) the sum of the Mezzanine Loan Payoff Amount to Brookside Mezzanine Fund II, L.P., as agent for the mezzanine lenders for full and complete payment of the Mezzanine Credit Agreement;
(iii) the Indemnification Escrow Amount to the Indemnification Escrow Agent, to be received, held and disbursed pursuant to the terms of this Agreement, with any balance thereof remaining upon the termination of the Indemnification Escrow Fund to be distributed to the Escrow Participants pursuant to Section 7.3 hereof;
(iv) the Stockholder Representative Escrow Amount to the Stockholder Representative Escrow Agent, to be received, held in an account (the “Stockholder Representative Escrow Fund”) and disbursed pursuant to the terms of the Stockholder Representative Escrow Agreement, with any balance thereof remaining upon the termination of the Stockholder Representative Escrow Agreement to be distributed pursuant to the terms thereof to the Escrow Participants;
(v) the sum of the following to the Paying Agent: (1) the Series A Aggregate Liquidation Preference for distribution to the holders of the Series A Preferred Stock, (2) the Series B Aggregate Liquidation Preference for distribution to the holders of the Series B Preferred Stock, (3) the Common Consideration, less the Option Merger Consideration, less the Warrant Merger Consideration, for distribution to the Common Stockholders, and (4) the Warrant Merger Consideration for distribution to the Warrantholders, each in accordance with the Payment Schedule delivered pursuant to Section 1.8 hereof; and
(vi) the sum of the following to the Surviving Corporation: the Option Merger Consideration for distribution to the Optionholders in accordance with the Payment Schedule delivered pursuant to Section 1.8 hereof.
Parent to Provide Consideration. Subject to the provisions of Section 7.4 hereof relating to escrow arrangements, at the Effective Time Parent shall make available to the Exchange and Paying Agent for exchange in accordance with this ARTICLE I the consideration payable at such times pursuant to Section 1.6 hereof in exchange for outstanding shares of Company Capital Stock; provided, however, that, Parent shall deposit into the Escrow Fund (as defined in Section 7.4(a) hereof) the shares of Parent Common Stock that comprise the Escrow Amount out of the aggregate number of shares of Parent Common Stock otherwise deliverable to the Stockholders pursuant to Section 1.6 hereof. The Pro Rata Portion of the Parent Common Stock comprising the Escrow Amount shall be deemed to be contributed to the Escrow Fund with respect to each Stockholder.
Parent to Provide Consideration. On or prior to the Closing Date, Parent shall deliver to the Exchange Agent for exchange in accordance with this Section 4, the Parent Consolidated Shares to be issued to the Company Stockholders (other than Company Stockholders entering into Parent Share Agreements) in respect of the Per Share Consideration.
Parent to Provide Consideration. On the Closing Date, Parent shall make available to the Paying Agent for exchange in accordance with this Article I that portion of the Merger Consideration payable pursuant to Section 1.6; provided, however, that Parent shall deposit into the Escrow Fund and the Expense Escrow Account, amounts of cash equal to the Escrow Amount and the Expense Escrow Amount, respectively, out of the aggregate Merger Consideration otherwise payable to the Unitholders and Optionholders pursuant to Section 1.6. Parent shall be deemed to have deposited each Unitholder’s and Optionholder’s Pro Rata Portion of the Escrow Amount and the Expense Escrow Amount into the Escrow Fund and the Expense Escrow Account, respectively, at such time, rounded to the nearest cent.
Parent to Provide Consideration. Subject to the provisions of Section 7.2(b) relating to escrow arrangements, promptly following the Effective Time, and on the Earnout Payment Date (if any), as applicable, Parent shall make available to the Exchange Agent for exchange in accordance with this ARTICLE I the consideration payable at such times pursuant to Section 1.6 hereof in exchange for outstanding shares of Company Capital Stock; provided, however, that, Parent shall deposit into the Escrow Fund (as defined in Section 7.3(a) hereof) the shares of Parent Common Stock that comprise the Escrow Amount out of the aggregate number of shares of Parent Common Stock otherwise deliverable to the Stockholders pursuant to Section 1.6 hereof. The Escrow Pro Rata Portion of the Parent Common Stock comprising the Escrow Amount shall be deemed to be contributed to the Escrow Fund with respect to each Stockholder. Neither Parent nor the Exchange Agent shall have any liability whatsoever with respect to the distribution of such payments among the Stockholders/former Stockholders of the Company provided that such payments are in accordance with the Payment Schedule.
Parent to Provide Consideration. On the Closing Date, Parent shall deposit the Cash Consideration and the Stock Consideration (less the Escrow Amount) with the Exchange Agent. For avoidance of doubt, the Cash Consideration will not include any amounts attributable to the exercise price for Vested Company Options, which amounts shall have been subtracted pursuant to Section 1.6(c)(i). In addition, Parent shall separately deposit the Escrow Amount into the Escrow Fund, as provided in Section 1.8.
