Common use of Payment and Allocation of Merger Consideration Clause in Contracts

Payment and Allocation of Merger Consideration. At and upon the Effective Time, Parent shall remit the Merger Consideration as follows: (i) ARTICLE a portion of the Merger Consideration in the amount of the Escrow Amount shall be deposited by Parent with the escrow agent (the "ESCROW AGENT") designated in the escrow agreement (the "ESCROW AGREEMENT"), substantially in the form of EXHIBIT B hereto, to be entered into at the Closing by Parent, the Representatives and the Escrow Agent. Such amounts delivered to the Escrow Agent, together with any investment proceeds thereon, are referred to collectively herein as the "ESCROW FUNDS" and will secure the Company Stockholders' indemnification obligation under ARTICLE XI; and (ii) the remaining amount of the Merger Consideration, after subtraction of the amount paid in accordance with SECTION 3.1(C)(I) and subtraction of the portion thereof otherwise allocable in accordance with SECTION 3.6 below to Dissenting Shares, shall be remitted to the Representatives for the benefit to Company Stockholders in the form of a promissory note payable to the Representatives in the form attached as EXHIBIT C hereto (the "CLOSING NOTE"). The Closing Note shall have an aggregate original principal amount equal to such remaining amount of Merger Consideration and shall provide for interest at the short-term applicable Federal rate as defined in Section 1274(d) of the Code for the month including the Closing Date. The aggregate of the payment set forth in SECTION 3.1(C)(I) above, together with any subsequent remittances to the Representatives or their designee pursuant to the Closing Note, the Standby Letter of Credit or as a consequence of the post-Closing adjustments to the Merger Consideration described in SECTION 3.3, is referred to herein as the "PAYMENT FUND." Upon and after the Closing, the Representatives, having been duly empowered to act on behalf of the Company Stockholders pursuant to the terms of the Representative Agreement, shall make determinations as to the allocation of the Merger Consideration among the Common Shares. In furtherance of the foregoing, the Representatives shall follow the directives and procedures set forth in this SECTION 3.1(C) and in SECTIONS 3.2 and 3.3 to determine the payments and deliveries to be made from the Payment Fund with respect to such ownership interests in the Company. If the Representatives determine that it is necessary to distribute the Closing Note to the Company Stockholders, Parent shall issue individual promissory notes to the Company Stockholders to evidence such division of the Closing Note and shall otherwise cooperate with the Representatives in good faith to divide the Closing Note and Standby Letter of Credit in the correct denominations and in the individual names of the Company Stockholders; PROVIDED, HOWEVER, the Representatives shall reimburse Parent for any out of pocket expenses incurred by Parent to accomplish such division; PROVIDED, FURTHER, that in no event shall Parent's aggregate obligations under the individual promissory notes exceed its obligation under the Closing Note.

Payment and Allocation of Merger Consideration. At and upon the Effective Time, Parent shall remit the Merger Consideration by wire transfer of immediately available funds as follows:follows to such account(s) and in the amounts set forth in the spreadsheet delivered pursuant to Section 3.1(b)(ii): (i) ARTICLE a portion of the Merger Consideration in the amount of the Adjustment Escrow Amount shall be deposited by Parent with the escrow agent in a non-interest bearing account (the "ESCROW AGENT"“Adjustment Escrow Account”) designated and the Indemnity Escrow Amount shall be deposited by Parent in a non-interest bearing account (the “Indemnity Escrow Account”), with Acquiom Clearinghouse LLC (the “Escrow Agent”) to be held pursuant to an escrow agreement (the "ESCROW AGREEMENT"“Escrow Agreement”), substantially in the form of EXHIBIT Exhibit B hereto, to be entered into at the Closing by Parent, the Representatives Representative and the Escrow Agent. Such amounts delivered to the Escrow Agent, together with any investment proceeds thereon, are referred and subject to collectively herein as the "ESCROW FUNDS" and will secure the Company Stockholders' indemnification obligation under ARTICLE XI; and (ii) the remaining amount of the Merger Consideration, after subtraction of the amount paid in accordance with SECTION 3.1(C)(I) and subtraction of the portion thereof otherwise allocable in accordance with SECTION 3.6 below to Dissenting Shares, shall be remitted to the Representatives any reduction for the benefit to Company Stockholders in the form of a promissory note payable to the Representatives in the form attached as EXHIBIT C hereto (the "CLOSING NOTE"). The Closing Note shall have an aggregate original principal amount equal to such remaining amount of Merger Consideration and shall provide for interest at the short-term applicable Federal rate as defined in Section 1274(d) of the Code for the month including the Closing Date. The aggregate of the payment set forth in SECTION 3.1(C)(I) above, together with any subsequent remittances to the Representatives or their designee pursuant to the Closing Note, the Standby Letter of Credit or as a consequence of the post-Closing adjustments to the Merger Consideration described in SECTION 3.3, is referred to herein as the "PAYMENT FUND." Upon and after the Closing, the Representatives, having been duly empowered to act on behalf of the Company Stockholders distributions made pursuant to the terms of the Representative Escrow Agreement, shall make determinations are referred to herein individually as the “Adjustment Escrow Funds” and the “Indemnity Escrow Funds” and, collectively, as the “Escrow Funds” and will be used solely to secure the allocation of Equityholders’ payment obligations (including Representative acting on their behalf), and Parent’s right to receive payments, in connection with any adjustments to the Merger Consideration among pursuant to Section 3.2; (ii) the Common SharesRepresentative Holdback Amount shall be deposited by Parent in an account designated in writing by the Representative. In furtherance Such Representative Holdback Amount will be used solely to pay any costs, fees and expenses incurred by the Representative on behalf of the foregoingEquityholders in accordance with this Agreement; and (iii) to the Paying Agent, (A) an amount in cash equal to the Representatives shall follow Merger Consideration, minus the directives and procedures set forth in this SECTION 3.1(C) and in SECTIONS 3.2 and 3.3 Escrow Amount, minus the Representative Holdback Amount, minus the Employee Option Cash-Out Amount, minus the Warrant Cancellation Amount, minus the Non-Employee Option Cash-Out Amount, for further payment to determine each Shareholder (other than holders of Dissenting Shares or the payments and deliveries Company Shares to be made from the Payment Fund canceled and extinguished in accordance with respect to such ownership interests Section 2.6(e)) in the Company. If the Representatives determine that it is necessary to distribute the Closing Note accordance with Section 3.1(g)(iii)), (B) an amount in cash equal to the Company StockholdersWarrant Cancellation Amount, Parent for further payment to each Warrantholder who shall issue individual promissory notes have delivered to the Company Stockholders Parent, prior to evidence such division of the Closing Note and shall otherwise cooperate with the Representatives Effective Time, a completed Warrant Surrender Agreement in good faith to divide the Closing Note and Standby Letter of Credit in the correct denominations and in the individual names respect of the Company Stockholders; PROVIDEDWarrants, HOWEVEReach by wire transfer of immediately available funds to an account designated by the Paying Agent, and (C) an amount in cash equal to the Representatives Non- Employee Option Cash-Out Amount, for further payment to each Non-Employee Optionholder who shall reimburse Parent for any out have delivered to the Parent, prior to the Effective Time, a completed Option Surrender Agreement in respect of pocket expenses incurred the In-the-Money-Options held by Parent the applicable Optionholder, each by wire transfer of immediately available funds to accomplish such division; PROVIDED, FURTHER, that in no event shall Parent's aggregate obligations under an account designated by the individual promissory notes exceed its obligation under the Closing NotePaying Agent.

Payment and Allocation of Merger Consideration. At and upon the Effective TimeClosing, Parent shall remit and/or cause to be remitted the Merger Consideration by wire transfer of immediately available funds as follows: (i) ARTICLE a A portion of the Merger Consideration in the amount of the Adjustment Escrow Amount shall be deposited by Parent with the escrow agent (the "ESCROW AGENT") designated in the escrow agreement (the "ESCROW AGREEMENT"), substantially in the form of EXHIBIT B hereto, Escrow Agent to be entered into at the Closing by Parent, the Representatives and the Escrow Agent. Such amounts delivered held pursuant to the Escrow Agent, together with any investment proceeds thereon, are referred to collectively herein as the "ESCROW FUNDS" and will secure the Company Stockholders' indemnification obligation under ARTICLE XI; andAgreement. (ii) A portion of the Merger Consideration in the amount of the Representative Holdback Amount shall be deposited by Parent with the Representative to satisfy potential future obligations of the Company Stockholders, which Representative Holdback Amount will be retained by the Representative in accordance with Section 9.17 hereof. (iii) A portion of the Merger Consideration payable to the Option Holders pursuant to Section 2.04 shall be remitted to the Company for payment in accordance with Section 2.04. (iv) The remaining amount of the Merger Consideration, after subtraction of the amount paid amounts remitted in accordance with SECTION 3.1(C)(ISection 2.02(c)(i), Section 2.02(c)(ii), and Section 2.02(c)(iii) and subtraction of the portion thereof otherwise allocable in accordance with SECTION 3.6 below Section 2.07 hereof to Dissenting Shares, shall be remitted to deposited with the Representatives Paying Agent for the benefit to Company Stockholders in the form of a promissory note payable to the Representatives in the form attached as EXHIBIT C hereto (the "CLOSING NOTE"). The Closing Note shall have an aggregate original principal amount equal to such remaining amount of Merger Consideration and shall provide for interest at the short-term applicable Federal rate as defined in Section 1274(d) of the Code for the month including the Closing Date. The aggregate of the payment set forth in SECTION 3.1(C)(I) above, together with any subsequent remittances to the Representatives or their designee pursuant to the Closing Note, the Standby Letter of Credit or as a consequence of the post-Closing adjustments to the Merger Consideration described in SECTION 3.3, is referred to herein as the "PAYMENT FUND." Upon and after the Closing, the Representatives, having been duly empowered to act on behalf of the Company Stockholders pursuant to the terms of the Representative Agreement, shall make determinations as to the allocation of the Merger Consideration among the Common Shares. In furtherance of the foregoing, the Representatives shall follow the directives and procedures set forth in this SECTION 3.1(C) and in SECTIONS 3.2 and 3.3 to determine the payments and deliveries to be made from the Payment Fund with respect to such ownership interests in the Company. If the Representatives determine that it is necessary to distribute the Closing Note to the Company Stockholders, Parent shall issue individual promissory notes further distribution to the Company Stockholders (other than Option Holders) in accordance with their respective aggregate Per Share Portions (solely with respect to evidence the Common Stock held by such division of Company Stockholders) and in accordance with the Paying Agent Agreement. At least one (1) Business Day prior to the Closing Note Date, Parent and the Representative shall otherwise cooperate with and deliver to the Representatives in good faith Paying Agent all information required by the Paying Agent to divide deliver the Merger Consideration to the Company Stockholders (other than the Option Holders) (provided that payment to Company Stockholders who deliver the documentation required hereby after the date that is one Business Day prior to the Closing Note and Standby Letter of Credit in Date may be paid after the correct denominations and in the individual names of the Company Stockholders; PROVIDED, HOWEVER, the Representatives shall reimburse Parent for any out of pocket expenses incurred by Parent to accomplish such division; PROVIDED, FURTHER, that in no event shall Parent's aggregate obligations under the individual promissory notes exceed its obligation under the Closing NoteClosing).

Payment and Allocation of Merger Consideration. At and upon the Effective Time, Parent shall remit the Merger Consideration by wire transfer of immediately available funds as follows: (i) ARTICLE a portion of the Merger Consideration in the amount of the Escrow Amount shall be deposited by Parent with the escrow agent in a non-interest-bearing account (the "ESCROW AGENT"“Escrow Account”), with Citibank, N.A. (the “Escrow Agent”) designated in the to be held pursuant to an escrow agreement (the "ESCROW AGREEMENT"“Escrow Agreement”), substantially in the form of EXHIBIT Exhibit B hereto, to be entered into at the Closing by Parent, the Representatives Representative and the Escrow Agent. Such amounts delivered to the Escrow Agent, together with Agent and subject to any investment proceeds thereonreduction for distributions made pursuant to the terms of the Escrow Agreement, are referred to collectively herein herein, collectively, as the "ESCROW FUNDS" “Escrow Funds” and will secure Parent’s right to receive payments in connection with adjustments to the Merger Consideration pursuant to Section 3.4(c); ​ ​ (ii) a portion of the Merger Consideration in the amount of the Representative Holdback Amount shall be deposited by Parent with the Representative to satisfy potential future obligations of the Company Stockholders' indemnification obligation under ARTICLE XIEscrow Equityholders, which Representative Holdback Amount will be retained by the Representative in accordance with this Agreement; (iii) subject to Section 3.1(e), (A) a portion of the Merger Consideration payable to the Non-Employee Option Holders pursuant to Section 3.3 or the holders of Company Warrants shall be remitted by Parent to the Payments Administrator for distribution to the Non-Employee Option Holders or holders of Company Warrants, as applicable, in accordance with the Consideration Schedule and (B) a portion of the Merger Consideration payable to the Employee Option Holders pursuant to Section 3.3 shall be remitted by Parent to the Payments Administrator for further distribution to the Company (which amount the Company (or one of the Company Subsidiaries) shall pay to the Employee Option Holders in accordance with the Consideration Schedule through the Company’s (or one of the Company Subsidiaries’) payroll system on or prior to the next regularly scheduled payroll date of the Company (or the applicable Company Subsidiary) that occurs after the Closing, but in no event sooner than three (3) Business Days after the Closing); and (iiiv) subject to Section 3.1(e), the remaining amount of the Merger Consideration, after subtraction of (1) the amount paid amounts remitted in accordance with SECTION 3.1(C)(ISection 3.1(c)(i) through Section 3.1(c)(iii), and subtraction of (2) the portion thereof otherwise allocable in accordance with SECTION Section 3.6 below to Dissenting Shares, shall be remitted by Parent to the Representatives Payments Administrator for the benefit to Company Stockholders in the form of a promissory note payable to the Representatives in the form attached as EXHIBIT C hereto (the "CLOSING NOTE"). The Closing Note shall have an aggregate original principal amount equal to such remaining amount of Merger Consideration and shall provide for interest at the short-term applicable Federal rate as defined in Section 1274(d) of the Code for the month including the Closing Date. The aggregate of the payment set forth in SECTION 3.1(C)(I) above, together with any subsequent remittances to the Representatives or their designee pursuant to the Closing Note, the Standby Letter of Credit or as a consequence of the post-Closing adjustments to the Merger Consideration described in SECTION 3.3, is referred to herein as the "PAYMENT FUND." Upon and after the Closing, the Representatives, having been duly empowered to act on behalf of the Company Stockholders pursuant to the terms of the Representative Agreement, shall make determinations as to the allocation of the Merger Consideration among the Common Shares. In furtherance of the foregoing, the Representatives shall follow the directives and procedures set forth in this SECTION 3.1(C) and in SECTIONS 3.2 and 3.3 to determine the payments and deliveries to be made from the Payment Fund with respect to such ownership interests in the Company. If the Representatives determine that it is necessary to distribute the Closing Note distribution to the Company Stockholders, Parent shall issue individual promissory notes to Equityholders (other than the Company Stockholders to evidence such division of the Closing Note Option Holders) as provided in this Article III and shall otherwise cooperate in accordance with the Representatives in good faith to divide the Closing Note and Standby Letter of Credit in the correct denominations and in the individual names of the Company Stockholders; PROVIDED, HOWEVER, the Representatives shall reimburse Parent for any out of pocket expenses incurred by Parent to accomplish such division; PROVIDED, FURTHER, that in no event shall Parent's aggregate obligations under the individual promissory notes exceed its obligation under the Closing NoteConsideration Schedule.

Payment and Allocation of Merger Consideration. At and upon the Effective Time, Parent the Company shall remit the Merger Consideration by wire transfer of immediately available funds as follows: (i) ARTICLE a portion of the Merger Consideration in equal to the amount of the Working Capital Escrow Amount (allocated among the Company Shareholders on an Adjusted Pro Rata Basis) shall be deposited by Parent the Company with the escrow agent (the "ESCROW AGENT"“Escrow Agent”) designated in the escrow agreement (the "ESCROW AGREEMENT"“Escrow Agreement”), substantially in the form of EXHIBIT B set forth in Exhibit C hereto, to be entered into at the Closing by Parent, the Representatives Shareholder Representative and the Escrow Agent. Such amounts delivered The Working Capital Escrow Fund shall be held, invested, and distributed or released, subject to the terms and conditions of this Agreement and the Escrow Agent, together with any investment proceeds thereon, are referred Agreement; (ii) a portion of the Merger Consideration equal to collectively herein as the "ESCROW FUNDS" and will secure Indemnity Escrow Amount (allocated among the Company Stockholders' indemnification obligation under ARTICLE XIShareholders on an Adjusted Pro Rata Basis) shall be deposited by the Company with the Escrow Agent designated in the Escrow Agreement. The Indemnity Escrow Fund shall be held, invested, and distributed or released, subject to the terms and conditions of this Agreement and the Escrow Agreement, from the Closing until the General Expiration Date, subject to the terms of the Escrow Agreement; (iii) a portion of the Merger Consideration equal to the CBT Escrow Amount (allocated among the Company Shareholders on an Adjusted Pro Rata Basis) shall be deposited by the Company with the Escrow Agent designated in the Escrow Agreement. The CBT Escrow Fund shall be held, invested, and distributed or released, subject to the terms and conditions of this Agreement and the Escrow Agreement, from the Closing until the final resolution of the matters contemplated by Section 9.2(e); (iv) a portion of the Merger Consideration equal to the Cash Short-Fall Amount, if any, shall be deposited by Parent with the Company or obtained by the Company through additional borrowings to be held and distributed to the holders of letters of credit and, if applicable, surety bonds or bank guarantees or released to the Company Shareholders (allocated among the Company Shareholders on an Adjusted Pro Rata Basis), in each case, in accordance with Section 2.10; and (iiv) the remaining amount of the Merger Consideration, after subtraction of the amount paid amounts remitted in accordance with SECTION 3.1(C)(ISections 2.1(b)(i), (ii), (iii) and (iv) above and subtraction of the portion thereof otherwise allocable to Dissenting Shares and to be withheld in accordance with SECTION 3.6 below Section 2.7, shall, subject to Dissenting SharesSection 2.3, shall be remitted to the Representatives for Shareholder Representative (on behalf of the benefit Company Shareholders); provided, that $1,000,000 of the Merger Consideration will be reserved as advance funding of the Shareholder Rep Holdback Amount, such funds to Company Stockholders be deposited into a money market account in the form of a promissory note payable to the Representatives in the form attached as EXHIBIT C hereto (the "CLOSING NOTE"). The Closing Note shall have an aggregate original principal amount equal to such remaining amount of Merger Consideration and shall provide for interest at the short-term applicable Federal rate as defined in Section 1274(d) name of the Code for Shareholder Representative in accordance with this Agreement and the month including the Closing DateEscrow Agreement. The aggregate of the payment payments set forth in SECTION 3.1(C)(I) abovethis Section 2.1(b), together with any subsequent remittances to the Representatives Shareholder Representative (on behalf of the Company Shareholders) or their its designee pursuant to the Closing Note, the Standby Letter of Credit or as a consequence of the post-Closing adjustments to the Merger Consideration described in SECTION 3.3Section 2.4, is referred to herein as the "PAYMENT FUND“Payment Fund." ” Upon and after the Closing, the RepresentativesShareholder Representative, having been duly empowered to act on behalf of the Company Stockholders Shareholders pursuant to the terms of the Representative this Agreement, shall allocate (including by causing the Company to make determinations payments with respect to Options in accordance with Section 2.3) the Payment Fund among the Common Shares and the Options in accordance with Section 2.2 and Section 2.3 of this Agreement. Attached hereto as to Exhibit G is an illustrative example of the allocation of manner in which the Merger Consideration among will be determined and paid at and upon the Common Shares. In furtherance of the foregoing, the Representatives shall follow the directives and procedures set forth in this SECTION 3.1(C) and in SECTIONS 3.2 and 3.3 to determine the payments and deliveries to be made from the Payment Fund with respect to such ownership interests in the Company. If the Representatives determine that it is necessary to distribute the Closing Note to the Company Stockholders, Parent shall issue individual promissory notes to the Company Stockholders to evidence such division of the Closing Note and shall otherwise cooperate with the Representatives in good faith to divide the Closing Note and Standby Letter of Credit in the correct denominations and in the individual names of the Company Stockholders; PROVIDED, HOWEVER, the Representatives shall reimburse Parent for any out of pocket expenses incurred by Parent to accomplish such division; PROVIDED, FURTHER, that in no event shall Parent's aggregate obligations under the individual promissory notes exceed its obligation under the Closing NoteEffective Time.