Payment of Additional Merger Consideration Sample Clauses

Payment of Additional Merger Consideration. (a) If on any Calculation Date, as determined in accordance with clause (b) below, the aggregate amount of the Current Credit Amounts, if any, for all Calendar Years ending prior to such Calculation Date exceeds the sum of (i) the aggregate amount of all Additional Merger Consideration Payments, if any, made prior to such Calculation Date and (ii) the aggregate amount of the Current Deficit Amounts, if any, for all Calendar Years ending prior to such Calculation Date, Parent shall pay to Newco a cash amount (an "ADDITIONAL MERGER CONSIDERATION PAYMENT") equal to such excess amount. The payment of each Additional Merger Consideration Payment shall be by wire transfer in immediately available funds to the account designated in writing by Newco (x) if no notice of objection regarding the determination and calculation set forth on the Calculation Notice (as defined below) is given by Newco to the Surviving Corporation within ten (10) days following the Calculation Date (as defined below), within fifteen (15) days following the Calculation Date (as defined below) relating to such Additional Merger Consideration Payment or (y) if Newco timely gives notice of objection regarding the determination and calculation set forth on the Calculation Notice (such notice must contain a statement in reasonable detail of the basis of Newco's objection) to the Surviving Corporation within ten (10) days following the Calculation Date, within five (5) days following the earlier of the mutual agreement of Newco and the Surviving Corporation as to such Additional Merger Consideration Payment or the receipt by the Surviving Corporation of the Final Calculation Notice relating to such Additional Merger Consideration Payment. (b) On a date (a "CALCULATION DATE") within forty-five (45) days after the end of each Calendar Year, the Surviving Corporation shall (i) determine the Market Deliveries for such Calendar Year; (ii) determine (X) the amount (the "CURRENT CREDIT") by which the Market Deliveries for such Calendar Year exceeds the Baseline Market Deliveries for such Calendar Year and the related Current Credit Amount for such Calendar Year or (Y) the amount (the "CURRENT DEFICIT") by which the Baseline Market Deliveries for such Calendar Year exceeds the Market Deliveries for such Calendar Year and the related Current Deficit Amount for such Calendar Year, as the case may be; (iii) calculate whether an Additional Merger Consideration Payment is payable pursuant to clause (a) above ...
Sample 1
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Payment of Additional Merger Consideration. Subject to Section 2.15(d) below, if at any time during the Earn-Out Period: (i) both the First Trading Price Threshold and the First Adjusted EBITDA Threshold shall have been met, then Purchaser shall deliver to the Securityholders’ Representative (on behalf of the Securityholders) $3,333,333.00 in cash, in a cashier’s or certified check, or wire transfer of immediately available funds to an account designated by the Securityholders’ Representative, and the Escrow Agent shall release the certificates evidencing the First Earn-Out Tranche Shares from the Earn-Out Escrow (the “First Earn-Out Tranche”); (ii) both the Second Trading Price Threshold and the Second Adjusted EBITDA Threshold shall have been met, then Purchaser shall deliver to the Securityholders’ Representative (on behalf of the Securityholders) $3,333,333.00 in cash, in a cashier’s or certified check, or wire transfer of immediately available funds to an account designated by the Securityholders’ Representative, and certificates evidencing 800,000 shares of Purchaser Common Stock (adjusted for any stock splits or stock dividends) (the “Second Earn-Out Tranche”); and (iii) both the Third Trading Price Threshold and the Third Adjusted EBITDA Threshold shall have been met, then Purchaser shall deliver to the Securityholders’ Representative (on behalf of the Securityholders) $3,333,334.00 in cash, in a cashier’s or certified check, or wire transfer of immediately available funds to an account designated by the Securityholders’ Representative, and certificates evidencing 800,000 shares of Purchaser Common Stock (adjusted for any stock splits or stock dividends) (the “Third Earn-Out Tranche” and together with the First Earn-Out Tranche and the Second Earn-Out Tranche, an “Earn-Out Tranche”).
Sample 1
Payment of Additional Merger Consideration. Subsequent to the Closing, Buyer shall be obligated to pay to the Escrow Agent within forty-five (45) days of the end of each calendar quarter additional Merger Consideration (the "ADDITIONAL MERGER CONSIDERATION") equal to ten percent (10%) of Net Receipts for sales of the Products from the Closing Date through December 31, 2003. Such payments of Additional Merger Consideration are required for all sales made through December 31, 2003, even if payments for such sales are not received until a later date. The Additional Merger Consideration payments will be held, administered, and disbursed by the Escrow Agent, subject to offset according to Section 10.3, pursuant to the terms of the Escrow Agreement.
Sample 1
Payment of Additional Merger Consideration. All Additional Merger Consideration payable hereunder or pursuant to the Escrow Agreement will be allocated among the Stockholders and the Optionholders pursuant to this Agreement and in accordance with the Certificate of Incorporation (assuming the exercise in full of the portions of the Options that are vested as of the Effective Time) and paid as follows: (a) with respect to each Stockholder, to the Paying Agent, for distribution to such Stockholder (following receipt of a completed and signed Transmittal Letter (together with all documents required to be delivered in accordance with the express requirements of such Transmittal Letter)) by bank wire transfer of immediately available funds to the account(s) designated in such Stockholder’s Transmittal Letter (or such other method designated in such Stockholder’s Transmittal Letter); and (b) with respect to each Optionholder, to the Surviving Corporation by bank wire transfer of immediately available funds to the account(s) designated in writing by the Surviving Corporation to the payor, and the Surviving Corporation shall, in turn, pay, or cause to be paid, such amounts to such Optionholder (less applicable Tax withholdings) as promptly thereafter as practicable, but in no event later than three (3) Business Days following the receipt thereof, through the payroll of the Surviving Corporation or any of the Subsidiaries in accordance with normal payroll practices. Prior to the payment of any Additional Merger Consideration to any Seller, the Seller Representative shall provide to Buyer a flow of funds setting forth the aggregate amount of Additional Merger Consideration to be paid or payable to each Seller pursuant to this Section 2.12 (each such funds flow, a “Supplemental Funds Flow Memorandum”). Notwithstanding anything in the Certificate of Incorporation to the contrary, except as set forth herein and in the Paying Agent Agreement, subject to compliance by Buyer of the obligations set forth in Section 2.12 and the Paying Agent Agreement, following the payment of Additional Merger Consideration pursuant to a Supplemental Funds Flow Memorandum, the Paying Agent, Buyer, the Surviving Corporation and its Affiliates shall not have any liability in excess of the amount payable to each Seller under Section 2.12 to the extent such amount was paid to such Seller in respect of the Shares (other than Dissenting Shares) and/or the Options held by such Seller pursuant to the allocations set forth in such Supplement...
Sample 1
Payment of Additional Merger Consideration. (a) If the Final Company Value exceeds the Estimated Company Value (such excess being the “Additional Amount”), then within two (2) Business Days after the final determination of the Final Closing Statement, Parent shall (a) issue to each Shareholder who is an Accredited Shareholder and to ULRF such number of shares of Parent Common Stock as is equal the quotient obtained by dividing (1) product of (x) the Per Share Accredited Portion, multiplied by (y) the Additional Amount, multiplied by (z) the aggregate number of shares of Company Common Stock held by such Shareholder or ULRF, as applicable, immediately prior to the Effective Time, by (2) the Issue Price (as to each such Shareholder, an “Additional Share Merger Consideration”), and (b) pay to each Shareholder who is a Non-Accredited Shareholder such amount in cash as is equal to the product of (x) the Per Share Portion, multiplied by (y) the Additional Amount, multiplied by (z) the aggregate number of shares of Company Common Stock held by such Shareholder immediately prior to the Effective Time (as to each such Shareholder, an “Additional Cash Merger Consideration”). (b) If the Estimated Company Value exceeds the Final Company Value (such excess being, the “Deficiency Amount”), then within two (2) Business Days after the final determination of the Final Closing Statement, Parent and the Shareholders’ Representative shall provide a joint written instruction to the Escrow Agent to deliver promptly from the Escrow Fund (a) such number of shares of Parent Common Stock as is equal to the quotient of (x) the product of the Deficiency Amount multiplied by the Share Consideration Ratio, divided by (y) the Issue Price, and (b) such amount in cash, by wire transfer of immediately available funds in accordance with the Escrow Agreement, as is equal to the product of the Deficiency Amount multiplied by the Cash Consideration Ratio.
Sample 1
Payment of Additional Merger Consideration. (a) In addition to the Merger Consideration to be delivered the A2S Shareholders at the Closing pursuant to Sections 1.6 and 1.7 hereof, the A2S Shareholders will be eligible to earn as additional consideration for the Merger, an aggregate earnout amount up to Three Hundred Thousand Dollars ($300,000) in the form of cash and EMCON Common Stock (the "Additional Consideration"), subject to the Surviving Corporation achieving the milestones set forth below. The form of the aggregate Additional Consideration to be paid to the A2S Shareholders (pro rata based on the total number of shares of A2S Capital Stock held by each A2S Shareholder immediately prior to the Effective Time) will be 50% in cash and 50% in shares of unregistered EMCON Common Stock valued at the closing price of EMCON Common Stock as reported on the Nasdaq National Market on the first business day following the end of an Earnings Period (as defined below). (b) In the event that the Surviving Corporation achieves the pretax income milestones (the "Income Milestones"), subject to the conditions set forth below, during the two twelve month periods following the Effective Time (the "Earnings Period"), EMCON agrees to deliver to the A2S Shareholders the aggregate earn-out payments (the "Earnout Payments") set forth opposite each Earnings Period, all as set forth below.
Sample 1

Related to Payment of Additional Merger Consideration

  • Adjustment of Merger Consideration If, subsequent to the date of this Agreement but prior to the Effective Time, the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class as a result of a stock split, reverse stock split, stock dividend, subdivision, reclassification, split, combination, exchange, recapitalization or other similar transaction, the Merger Consideration shall be appropriately adjusted.

  • Payment of Merger Consideration (a) As soon as reasonably practicable after the Effective Time, the Surviving Entity (or its successor in interest) shall deliver to each holder of SPE LLC Interests whose SPE LLC Interests have been converted into the right to receive the Merger Consideration pursuant to Section 1.05(b) hereof, the Merger Consideration payable to such holder in the amounts and form provided in Section 1.05(b) hereof. The issuance of the OP Units and admission of the recipients thereof as limited partners of the Operating Partnership pursuant to Section 1.05(b) shall be evidenced by an amendment to Exhibit A of the Operating Partnership Agreement, and the Operating Partnership shall deliver, or cause to be delivered, an executed copy of such amendment to each Pre-Formation Participant receiving OP Units hereunder. Each certificate representing REIT Shares issuable as Merger Consideration shall bear the following legend: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE CORPORATION AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE CORPORATION’S CHARTER, (I) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION’S COMMON STOCK IN EXCESS OF % (IN VALUE OR NUMBER OF SHARES) OF THE OUTSTANDING SHARES OF COMMON STOCK OF THE CORPORATION UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (II) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK OF THE CORPORATION IN EXCESS OF % OF THE VALUE OF THE TOTAL OUTSTANDING SHARES OF CAPITAL STOCK OF THE CORPORATION, UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (III) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN CAPITAL STOCK THAT WOULD RESULT IN THE CORPORATION BEING “CLOSELY HELD” UNDER SECTION 856(h) OF THE CODE OR OTHERWISE CAUSE THE CORPORATION TO FAIL TO QUALIFY AS A REIT; AND (IV) NO PERSON MAY TRANSFER SHARES OF CAPITAL STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK WHICH CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP SET FORTH IN (I) THROUGH (III) ABOVE ARE VIOLATED, THE SHARES OF CAPITAL STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO A TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN ADDITION, THE CORPORATION MAY TAKE OTHER ACTIONS, INCLUDING REDEEMING SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE AND ABSOLUTE DISCRETION IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE CHARTER OF THE CORPORATION, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF CAPITAL STOCK OF THE CORPORATION ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE. (b) The Surviving Entity (or its successor in interest) shall not be liable to any holder of SPE LLC Interests for any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (c) So long as some portion of the Merger Consideration is in the form of OP Units, the parties hereto intend and agree that, for United States federal income tax purposes, the Merger shall constitute an “assets-over” partnership merger within the meaning of Treasury Regulations Section 1.708-1(c)(3)(i), and, as a result, that (i) any payment of cash or REIT Shares for SPE LLC Interests of such holder shall be treated as a sale of such SPE LLC Interests by the holder and a purchase of such SPE LLC Interests by the Operating Partnership for the cash and/or REIT Shares so paid under the terms of this Agreement in accordance with Treasury Regulations Section 1.708-1(c)(4), and (ii) each such holder of SPE LLC Interests who accepts cash and/or REIT Shares shall explicitly agree and consent (the “Sale Consent”) to such treatment in their Consent Form as a condition to electing such consideration. To the extent the Operating Partnership acquires any SPE LLC Interests as described above, or previously acquired such interests, for United States federal income tax purposes the receipt by the Operating Partnership of the portion of property attributable to such SPE LLC Interests shall be treated as a distribution by the SPE LLC in redemption of such SPE LLC Interests. Notwithstanding Section 1.05(b) and any holder’s election as to the form of their Merger Consideration, if any holder (other than a non-accredited investor) fails to execute a Sale Consent prior to the Closing, such holder’s Merger Consideration shall consist solely of OP Units. Any cash paid as the Merger Consideration to a non-accredited investor for a SPE LLC Interests shall be paid only after the receipt of a Sale Consent from such holder.

  • Adjustment to Merger Consideration The Merger Consideration shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the date hereof and prior to the Effective Time.

  • Adjustments to Merger Consideration The Merger Consideration shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock occurring (or for which a record date is established) after the date hereof and prior to the Effective Time.

  • Recitals Merger Consideration 2.1(b) Merger Sub.....................................................

  • Merger Consideration Each share of the common stock, par value $0.01 per share, of the Company (a “Share” or, collectively, the “Shares”) issued and outstanding immediately prior to the Effective Time other than (i) Shares owned by Parent, Merger Sub or any other direct or indirect wholly-owned Subsidiary of Parent and Shares owned by the Company or any direct or indirect wholly-owned Subsidiary of the Company, and in each case not held on behalf of third parties (but not including Shares held by the Company in any “rabbi trust” or similar arrangement in respect of any compensation plan or arrangement) and (ii) Shares that are owned by stockholders (“Dissenting Stockholders”) who have perfected and not withdrawn a demand for appraisal rights pursuant to Section 262 of the DGCL (each Share referred to in clause (i) or clause (ii) being an “Excluded Share” and collectively, “Excluded Shares”) shall be converted into the right to receive $27.25 per Share in cash, without interest (the “Per Share Merger Consideration”). At the Effective Time, all of the Shares shall cease to be outstanding, shall be cancelled and shall cease to exist, and each certificate (a “Certificate”) formerly representing any of the Shares (other than Excluded Shares) and each non-certificated Share represented by book-entry (a “Book Entry Share”) (other than Excluded Shares) shall thereafter represent only the right to receive the Per Share Merger Consideration, without interest, and each Certificate formerly representing Shares or Book Entry Shares owned by Dissenting Stockholders shall thereafter only represent the right to receive the payment to which reference is made in Section 4.2(f).

  • Deposit of Merger Consideration (a) Prior to the Effective Time, CenterState shall deposit, or shall cause to be deposited, with the Exchange Agent (A) the number of shares of CenterState Common Stock issuable pursuant to Section 2.01(c) in book-entry form equal to the aggregate CenterState Common Stock portion of the Merger Consideration (excluding any fractional shares), and (B) cash in an amount sufficient to pay (1) the Cash Consideration and (2) to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.04 (collectively, the “Exchange Fund”). (b) Any portion of the Exchange Fund that remains unclaimed by the stockholders of Charter for one (1) year after the Effective Time (as well as any interest or proceeds from any investment thereof) shall be delivered by the Exchange Agent to CenterState. Any stockholders of Charter who have not theretofore complied with this Section 2.07 and Section 2.08(a) shall thereafter look only to CenterState for the Merger Consideration, any cash in lieu of fractional shares of CenterState Common Stock to be issued or paid in consideration therefor, and any dividends or distributions to which such Holder shall have become entitled to pursuant to Section 2.08(b) deliverable in respect of each share of Charter Common Stock such stockholder held as of immediately prior to the Effective Time, as determined pursuant to this Agreement, in each case without any interest thereon. If outstanding Certificates or Book-Entry Shares for shares of Charter Common Stock are not surrendered or the payment for them is not claimed prior to the date on which such shares of CenterState Common Stock or cash would otherwise escheat to or become the property of any governmental unit or agency, the unclaimed items shall, to the extent permitted by the law of abandoned property and any other applicable Law, become the property of CenterState (and to the extent not in its possession shall be delivered to it), free and clear of all claims or interest of any Person previously entitled to such property. Neither the Exchange Agent nor any Party shall be liable to any Holder represented by any Certificate or Book-Entry Share for any Merger Consideration (or any dividends or distributions with respect thereto) paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. CenterState and the Exchange Agent shall be entitled to rely upon the stock transfer books of Charter to establish the identity of those Persons entitled to receive the Merger Consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of any shares of Charter Common Stock represented by any Certificate or Book-Entry Share, CenterState and the Exchange Agent shall be entitled to tender to the custody of any court of competent jurisdiction any Merger Consideration represented by such Certificate or Book-Entry Share and file legal proceedings interpleading all parties to such dispute, and will thereafter be relieved with respect to any claims thereto.

  • Effect of Reorganization Etc Adjustment of Exercise Price 3.1 In the event of any capital reorganization or reclassification not otherwise covered in Section 4, or any consolidation or merger to which the Company is a party other than a merger or consolidation in which the Company is the surviving corporation, or in case of any sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another corporation (including any exchange effected in connection with a merger of a third corporation into the Company), the Holder of this Warrant shall have the right thereafter to receive on the exercise of this Warrant the kind and amount of securities, cash or other property which the Holder would have owned or have been entitled to receive immediately after such reorganization, reclassification, consolidation, merger, statutory exchange, sale or conveyance had this Warrant been exercised immediately prior to the effective date of such reorganization, reclassification, consolidation, merger, statutory exchange, sale or conveyance and in any such case, if necessary, appropriate adjustment shall be made in the application of the provisions set forth in Section 4 with respect to the rights and interests thereafter of the Holder of this Warrant to the end that the provisions set forth in Section 4 shall thereafter correspondingly be made applicable, as nearly as may reasonably be, in relation to any shares of stock or other securities or property thereafter deliverable on the exercise of this Warrant. The above provisions of this Section 3 shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, statutory exchanges, sales or conveyances. 3.2 If, as a result of an adjustment made pursuant to this Section 3, the Holder shall become entitled to receive, upon exercise of the Warrant, shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive) shall determine the allocation of the adjusted Per Share Exercise Price between or among shares or such classes of capital stock or shares of Common Stock and other capital stock.

  • Merger Consideration Exchange Procedures Merger Consideration 14 Section 3.2 Rights As Unitholders; Unit Transfers 15 Section 3.3 Exchange of Certificates 15 Section 3.4 Anti-Dilution Provisions 18 Section 3.5 Equity Awards 19

  • Allocation of Consideration (i) Subject to Subsection 2.2(d)(ii), the aggregate consideration payable to the Participating Investors and the selling Key Holder shall be allocated based on the number of shares of Capital Stock sold to the Prospective Transferee by each Participating Investor and the selling Key Holder as provided in Subsection 2.2(b), provided that if a Participating Investor wishes to sell Preferred Stock, the price set forth in the Proposed Transfer Notice shall be appropriately adjusted based on the conversion ratio of the Preferred Stock into Common Stock. (ii) In the event that the Proposed Key Holder Transfer constitutes a Change of Control, the terms of the Purchase and Sale Agreement shall provide that the aggregate consideration from such transfer shall be allocated to the Participating Investors and the selling Key Holder in accordance with Sections 2.1 and 2.2 of Article IV(B) of the Restated Certificate and, if applicable, the next sentence as if (A) such transfer were a Deemed Liquidation Event (as defined in the Restated Certificate), and (B) the Capital Stock sold in accordance with the Purchase and Sale Agreement were the only Capital Stock outstanding. In the event that a portion of the aggregate consideration payable to the Participating Investor(s) and selling Key Holder is placed into escrow and/or is payable only upon satisfaction of contingencies, the Purchase and Sale Agreement shall provide that (x) the portion of such consideration that is not placed in escrow and is not subject to contingencies (the “Initial Consideration”) shall be allocated in accordance with Sections 2.1 and 2.2 of Article IV(B) of the Restated Certificate as if the Initial Consideration were the only consideration payable in connection with such transfer, and (y) any additional consideration which becomes payable to the Participating Investor(s) and selling Key Holder upon release from escrow or satisfaction of such contingencies shall be allocated in accordance with Sections 2.1 and 2.2 of Article IV(B) of the Restated Certificate after taking into account the previous payment of the Initial Consideration as part of the same transfer.

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