Common use of Payment of Closing Merger Consideration Clause in Contracts

Payment of Closing Merger Consideration. (a) Promptly after the Effective Time, but, in each case, on the Closing Date, Parent shall make (or cause to be made) the following payments or deliveries, as applicable: (i) to an account designated in writing by the Payment Agent, by wire transfer of immediately available funds, an aggregate amount equal to the Closing Merger Consideration (less the Closing NOL Adjustment Amount and any Closing Merger Consideration applicable to Dissenting Shares), to be used for payment of the Closing Merger Consideration to Stockholders for which or whom a Letter of Transmittal (as defined below) has been properly completed and received (together with any Certificates or other credentials, as applicable) by the Payment Agent, in accordance with the terms of the Payment Agent Agreement; (ii) on behalf of the Company, to such accounts designated in writing by the Company, by wire transfer of immediately available funds, an amount, in the aggregate, equal to the Closing Indebtedness to enable the Company to repay, or cause to be repaid, the Closing Indebtedness set forth on the Indebtedness Statement; (iii) on behalf of the Company, to such accounts designated in writing by the Company, by wire transfer of immediately available funds, an amount, in the aggregate, equal to the Unpaid Transaction Expenses to enable the Company to pay, or cause to be paid, the Unpaid Transaction Expenses set forth on the Unpaid Transaction Expenses Statement; (iv) on behalf of the Stockholders, to an account designated in writing by the Escrow Agent to be governed by the Escrow Agreement (such account, the “Escrow Account”), by wire transfer of immediately available funds, an amount equal to the Escrow Amount, and for all purposes hereunder each Stockholder shall be deemed to have contributed its Allocable Percentage of the Escrow Amount; and (v) on behalf of the Stockholders, to an account designated in writing by the Representative to be governed by Section 12.03 and the provisions of the Letter of Transmittal (such account, the “Representative Fund”), by wire transfer of immediately available funds, an amount equal to the Representative Fund Amount, and for all purposes hereunder each Stockholder shall be deemed to have contributed its Allocable Percentage of the Representative Fund Amount. (b) Prior to the Closing, Parent and Representative will engage the Payment Agent pursuant to the Payment Agent Agreement. At any time after the date hereof, the Company shall cause a letter of transmittal in the form attached hereto as Exhibit E (each, a “Letter of Transmittal”) to be delivered to each Stockholder. After the Effective Time, each holder of a certificate or certificates representing shares of Common Stock (other than certificates representing Excluded Shares and Dissenting Shares) (collectively, the “Certificates”), upon surrender of such Certificates to the Payment Agent (or a lost Certificate affidavit) and a properly completed and duly executed Letter of Transmittal, shall be entitled to receive (in accordance with the terms hereof) in exchange therefor an amount in cash (without interest) per share equal to the Common Per Share Merger Consideration, as indicated on the Payment Schedule and pursuant to the terms hereof, and such Certificate shall, after such surrender, be marked as canceled. If a Stockholder delivers a Letter of Transmittal at least two (2) Business Days prior to the Closing Date, Parent shall cause the Payment Agent to pay such Stockholder at the Closing the Common Per Share Merger Consideration in respect of each share surrendered by such Letter of Transmittal in accordance with the Payment Agent Agreement. Notwithstanding the foregoing, the payment to Actua Holdings, Inc. (“Actua Holdings”), a wholly owned subsidiary of Actua, in respect of the Closing Common Per Share Consideration shall be reduced by the Closing NOL Adjustment Amount, if any, as a set off in respect of Actua Holdings’ obligations under Section 8.03(a). (c) In the event that any Certificate for shares of Common Stock has been lost, stolen or destroyed, the Payment Agent shall pay such portion of the Aggregate Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof, together with an indemnity in customary form in favor of the Surviving Corporation, as a condition precedent to the payment of any portion of the Aggregate Merger Consideration attributable to such shares of Common Stock. (d) If any payment under this Agreement is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, it shall be a condition to such payment that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of such payment in a name other than that of the registered holder of the Certificate surrendered or shall have established to the reasonable satisfaction of the Payment Agent that such Taxes either have been paid or are not payable. (e) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any shares of Common Stock. Until surrendered as contemplated by this Section 2.06, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender such portion of the Aggregate Merger Consideration as may be required pursuant to this Agreement in exchange therefore in respect of such security represented by such Certificate. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the respective portion of the Aggregate Merger Consideration they represent, as provided in this Article 2. (f) Notwithstanding anything else in this Agreement, the portions of Closing Merger Consideration payable to any particular Stockholder upon Closing shall be as set forth opposite such Stockholder’s name on the Payment Schedule; provided, however, that, pursuant to Section 2.06(b), any amounts payable to Actua Holdings shall be reduced by the Closing NOL Adjustment Amount, if any. (g) Any portion of the Aggregate Merger Consideration made available to the Payment Agent pursuant to this Section 2.06 that remains unclaimed by Stockholders 12 months after the time it was delivered to the Payment Agent shall be returned to the Surviving Corporation upon demand. Any such Stockholder who has not exchanged shares of Common Stock for, or otherwise claimed, the applicable portion of the Aggregate Merger Consideration in accordance with this Article 2 prior to that time thereafter will look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Applicable Laws) for payment of the applicable portion of the Aggregate Merger Consideration in respect thereof.

Payment of Closing Merger Consideration. (a) Promptly after At the Effective TimeClosing, but, in each case, on the Closing Date, Parent shall make (or cause to be made) the following payments or deliveries, as applicable: (i) to an account designated in writing by the Payment Agentpay, by wire transfer of immediately available funds, an aggregate amount equal funds (x) to the Closing Merger Consideration Paying Agent, for the benefit of each Stockholder, the product of (less i) the Closing NOL Adjustment Amount Common Share Price times (ii) the number of outstanding shares of Common Stock and any Closing Merger Consideration applicable (y) to Dissenting Shares)the Company, to be used for payment the benefit of the Closing Merger Consideration to Stockholders for which or whom each holder of a Letter of Transmittal (as defined below) has been properly completed Vested Option and received (together with any Certificates or other credentials, as applicable) by the Payment Agent, further distribution in accordance with the terms of the Payment Agent Agreement; (ii) on behalf of the Company, to such accounts designated in writing by the Company, by wire transfer of immediately available funds, an amount, in the aggregate, equal to the Closing Indebtedness to enable the Company to repay, or cause to be repaidSection 2.9, the Closing Indebtedness set forth on the Indebtedness Statement; (iii) on behalf aggregate amount payable to all holders of the Company, to such accounts designated Vested Options calculated in writing by the Company, by wire transfer of immediately available funds, an amount, in the aggregate, equal to the Unpaid Transaction Expenses to enable the Company to pay, or cause to be paid, the Unpaid Transaction Expenses set forth on the Unpaid Transaction Expenses Statement; (iv) on behalf of the Stockholders, to an account designated in writing by the Escrow Agent to be governed by the Escrow Agreement (such account, the “Escrow Account”accordance with Section 2.6(b)(i)(A), by wire transfer of immediately available funds, an amount equal to the Escrow Amount, and for all purposes hereunder each Stockholder shall be deemed to have contributed its Allocable Percentage of the Escrow Amount; and (v) on behalf of the Stockholders, to an account designated in writing by the Representative to be governed by Section 12.03 and the provisions of the Letter of Transmittal (such account, the “Representative Fund”), by wire transfer of immediately available funds, an amount equal to the Representative Fund Amount, and for all purposes hereunder each Stockholder shall be deemed to have contributed its Allocable Percentage of the Representative Fund Amount. (b) Prior to the ClosingEffective Time, the Company shall appoint JPMorgan Chase Bank, N.A. (the “Paying Agent”), to act as paying agent to effect the exchange of the Merger Consideration for the Common Certificates representing shares of Common Stock held by any Stockholder at the Closing entitled to payment pursuant to Section 2.6. (a) As an inducement for the Parent and Representative will engage Merger Sub to enter into this Agreement, as soon as practical after the Payment Agent pursuant to the Payment Agent Agreement. At date hereof, but in any time after event within fifteen (15) Business Days following the date hereof, the Company shall cause deliver to each Stockholder a letter of transmittal in the form attached hereto as Exhibit E D (each, a the “Letter of Transmittal”) ). It is expressly acknowledged and agreed that no Stockholder shall be entitled to be any portion of the Common Merger Consideration provided under Section 2.6 unless and until such Stockholder has delivered to each Stockholder. After the Effective TimePaying Agent: (i) if applicable, each holder of a certificate all Common Certificates, duly endorsed in blank or certificates accompanied by duly executed stock powers, representing shares of Common Stock held by such Stockholder at the Closing and (other than certificates representing Excluded Shares and Dissenting Sharesii) (collectively, the “Certificates”), upon surrender a Letter of such Certificates to the Payment Agent (or a lost Certificate affidavit) and a properly Transmittal duly completed and duly validly executed Letter of Transmittal, shall be entitled to receive (in accordance with the terms hereof) in exchange therefor an amount in cash instructions therein (without interest) per share equal the “Equityholder Deliveries”). The Company or the Paying Agent shall deliver copies of the Equityholder Deliveries to the Common Per Share Merger Consideration, as indicated on the Payment Schedule and pursuant to the terms hereof, and such Certificate shall, after such surrender, be marked as canceled. Parent. (d) If a Stockholder delivers a Letter of Transmittal his, her or its Equityholder Deliveries to the Paying Agent at least two (2) Business Days prior to Closing, then the Closing DatePaying Agent shall pay and deliver, Parent shall cause at the Payment Agent Closing, to pay such Stockholder at the Closing the Common Per Share Merger Consideration in respect of each share surrendered by such Letter of Transmittal in accordance with the Payment Agent Agreement. Notwithstanding the foregoing, the payment to Actua Holdings, Inc. (“Actua Holdings”), a wholly owned subsidiary of Actua, in respect of the Closing Common Per Share Consideration shall be reduced by the Closing NOL Adjustment Amount, if anyPrice to which such Stockholder is entitled under Section 2.6, as set forth on the Merger Consideration Allocation Schedule. If a set off in respect of Actua Holdings’ obligations under Section 8.03(a). Stockholder delivers his, her or its Equityholder Deliveries to the Paying Agent later than two (c2) In Business Days prior to the event that any Certificate for shares of Common Stock has been lostClosing, stolen or destroyedthen, within five (5) Business Days after such delivery, the Payment Paying Agent shall pay and deliver to such portion of Stockholder the Aggregate Closing Common Share Price to which such Stockholder is entitled under Section 2.6, as set forth on the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon Allocation Schedule. Within five (5) Business Days of receiving surrendered Common Certificates from the making of an affidavit of that fact by the holder thereof, together with an indemnity in customary form in favor of the Surviving Corporation, as a condition precedent to the payment of any portion of the Aggregate Merger Consideration attributable to such shares of Common Stock. (d) If any payment under this Agreement is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, it shall be a condition to such payment that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of such payment in a name other than that of the registered holder of the Certificate surrendered or shall have established to the reasonable satisfaction of the Payment Agent that such Taxes either have been paid or are not payable. (e) At the close of business on the day of the Effective TimeStockholders, the stock transfer books of the Company Paying Agent shall be closed and thereafter there shall be no transfers of any shares of deliver such surrendered Common Stock. Until surrendered as contemplated by this Section 2.06, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender such portion of the Aggregate Merger Consideration as may be required pursuant to this Agreement in exchange therefore in respect of such security represented by such Certificate. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the respective portion of the Aggregate Merger Consideration they represent, as provided in this Article 2. (f) Notwithstanding anything else in this Agreement, the portions of Closing Merger Consideration payable to any particular Stockholder upon Closing shall be as set forth opposite such Stockholder’s name on the Payment Schedule; provided, however, that, pursuant to Section 2.06(b), any amounts payable to Actua Holdings shall be reduced by the Closing NOL Adjustment Amount, if any. (g) Any portion of the Aggregate Merger Consideration made available to the Payment Agent pursuant to this Section 2.06 that remains unclaimed by Stockholders 12 months after the time it was delivered to the Payment Agent shall be returned to then the Surviving Corporation upon demandshall cancel such Common Certificates. Any such Stockholder who has not exchanged Until so surrendered, each Common Certificate shall represent solely the right to receive the Merger Consideration into which the shares of Common Stock forit theretofore represented shall have been converted pursuant to Section 2.6, or otherwise claimed, the applicable portion of the Aggregate Merger Consideration in accordance with this Article 2 prior to that time thereafter will look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Applicable Laws) for payment of the applicable portion of the Aggregate Merger Consideration in respect thereofwithout interest.

Payment of Closing Merger Consideration. (ai) Promptly From and after the Effective Time, butX.X. Xxxxxx Trust Company, in each case, on the Closing Date, Parent shall make National Association (or cause its successor in interest) shall act as paying agent (the “Paying Agent”) pursuant to an agreement to be made) entered into by and among the following payments or deliveries, as applicable: (i) to an account designated in writing by the Payment Paying Agent, by wire transfer of immediately available funds, an aggregate amount equal the Parent and the Shareholders’ Representative on or prior to the Closing Merger Consideration Effective Time in substantially the form attached hereto as Exhibit 3.3(a)(i) (less the Closing NOL Adjustment Amount “Paying Agent Agreement”) and any Closing Merger Consideration applicable to Dissenting Shares), to be used for effect the payment of the Closing Merger Consideration in respect of (i) stock certificates (the “Certificates”) that, prior to Stockholders for which or whom a Letter of Transmittal (as defined below) has been properly completed and received (together with any Certificates or other credentialsthe Effective Time, as applicable) by the Payment Agent, in accordance with the terms represented Company Stock entitled to payment of the Payment Agent Agreement; Closing Merger Consideration pursuant to Section 3.1(a) of this Agreement and (ii) on behalf Warrants that, prior to the Effective Time, were exercisable for Company Shares and are entitled to payment of the CompanyWarrant Merger Consideration pursuant to Section 3.6 of this Agreement. At the Effective Time, to such accounts designated in writing by the Company, by wire transfer of immediately available funds, an amount, in the aggregate, equal to the Closing Indebtedness to enable the Company to repayParent shall deposit, or cause to be repaiddeposited, with the Paying Agent the Closing Indebtedness set forth on Merger Consideration to which the Indebtedness Statement; (iii) on behalf of the Company, to such accounts designated in writing by the Company, by wire transfer of immediately available funds, an amount, in the aggregate, equal to the Unpaid Transaction Expenses to enable the Company to pay, or cause to be paid, the Unpaid Transaction Expenses set forth on the Unpaid Transaction Expenses Statement; (iv) on behalf of the Stockholders, to an account designated in writing by the Escrow Agent to be governed by the Escrow Agreement (such account, the “Escrow Account”), by wire transfer of immediately available funds, an amount equal to the Escrow Amount, Shareholders and for all purposes hereunder each Stockholder Warrant Holders shall be deemed entitled pursuant to have contributed its Allocable Percentage of the Escrow Amount; and (v) on behalf of the Stockholders, to an account designated in writing by the Representative to be governed by Section 12.03 and the provisions of the Letter of Transmittal (such account, the “Representative Fund”), by wire transfer of immediately available funds, an amount equal to the Representative Fund Amount, and for all purposes hereunder each Stockholder shall be deemed to have contributed its Allocable Percentage of the Representative Fund Amountthis Article 3. (bii) Prior Within a reasonable period prior to the Closing, Parent and Representative will engage the Payment Agent pursuant to the Payment Agent Agreement. At any time after the date hereofEffective Time, the Company shall cause provide to the Paying Agent a form of letter of transmittal in a customary form mutually agreed upon by the form attached hereto as Exhibit E Parties (each, a the “Letter of Transmittal”) which shall, among other things, specify that delivery shall be effected, and risk of loss and title to be delivered the Certificates and Warrants shall pass, only upon proper delivery of the Certificates and/or Warrants to each Stockholder. After the Effective TimePaying Agent, each holder of a certificate or certificates representing shares of Common Stock (other than certificates representing Excluded Shares and Dissenting Shares) (collectively, the “Certificates”), upon surrender of instructions for surrendering such Certificates to and/or Warrants and receiving the Payment Agent (Applicable Closing Per Share Merger Consideration, Per Share Escrow Consideration or a lost Certificate affidavit) and a properly completed and duly executed Letter of Transmittal, shall be entitled to receive (in accordance with the terms hereof) in exchange therefor an amount in cash (without interest) per share equal to the Common Warrant Per Share Merger Consideration, as indicated applicable, in respect thereof. The Parent shall cause the Paying Agent to mail on the Payment Schedule and pursuant or prior to the terms hereofEffective Time, or as soon thereafter as is practicable but not later than five (5) Business Days following the Effective Time, the Letter of Transmittal to each Shareholder and Warrant Holder. In accordance with the Paying Agent Agreement, upon the surrender of each such Certificate, the Paying Agent shall pay, as promptly as practicable, to the holder of such Certificate an aggregate amount equal to (i) the Applicable Closing Per Share Merger Consideration, multiplied by (ii) the number of Company Shares formerly represented by such Certificate, in consideration therefor, and such Certificate shallshall forthwith be cancelled. In accordance with the Paying Agent Agreement, after upon the surrender of each such surrenderWarrant, be marked the Paying Agent shall pay, as canceled. If a Stockholder delivers a Letter of Transmittal at least two (2) Business Days prior promptly as practicable, to the Closing Date, Parent shall cause holder of such Warrant an aggregate amount equal to (i) the Payment Agent to pay such Stockholder at the Closing the Common Warrant Per Share Merger Consideration in respect Consideration, multiplied by (ii) the number of each share surrendered Company Shares formerly represented by such Letter of Transmittal in accordance with the Payment Agent Agreement. Notwithstanding the foregoing, the payment to Actua Holdings, Inc. (“Actua Holdings”), a wholly owned subsidiary of ActuaWarrant, in respect consideration therefor, and such Warrant shall forthwith be cancelled. Until so surrendered, each such Certificate (other than Certificates representing Company Stock held by the Company or held in the treasury of the Company) and each such Warrant shall represent solely the right to receive the Applicable Closing Common Per Share Merger Consideration, Per Share Escrow Consideration or Warrant Per Share Merger Consideration, as applicable, multiplied by the number of shares of Company Stock represented thereby. No interest or dividends shall be reduced by paid or accrued on the Merger Consideration. If the Applicable Closing NOL Adjustment AmountPer Share Merger Consideration, if anyPer Share Escrow Consideration or Warrant Per Share Merger Consideration, as a set off in respect of Actua Holdings’ obligations under Section 8.03(a). applicable (c) In the event that any Certificate for shares of Common Stock has been lost, stolen or destroyed, the Payment Agent shall pay such portion of the Aggregate Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof, together with an indemnity in customary form in favor of the Surviving Corporation, as a condition precedent to the payment of any portion of the Aggregate Merger Consideration attributable to such shares of Common Stock. (dthereof) If any payment under this Agreement is to be made delivered to a any Person other than the Person in whose name a the Certificate formerly representing Company Stock, or Warrant formerly exercisable for shares of Company Stock, as applicable, surrendered Certificate thereof is registered, it shall be a condition to such right to receive payment of such Applicable Closing Per Share Merger Consideration, Per Share Escrow Consideration or Warrant Per Share Merger Consideration, as applicable, that the Certificate or Warrant so surrendered shall be properly endorsed or shall otherwise be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any pay to the Paying Agent the transfer and or other Taxes similar taxes required by reason of such payment in of the Applicable Closing Per Share Merger Consideration, Per Share Escrow Consideration or Warrant Per Share Merger Consideration, as applicable, to a name Person other than that of the registered holder of the Certificate surrendered or Warrant so surrendered, or shall have established establish to the reasonable satisfaction of the Payment Paying Agent that such Taxes either have tax has been paid or are is not payableapplicable. (eiii) At In the close event that any Certificate or Warrant shall have been lost, stolen or destroyed, upon the making of business on an affidavit of that fact and delivering an indemnity agreement by the day of Person claiming such Certificate or Warrant to be lost, stolen or destroyed, in such substance and form as the Effective TimeSurviving Corporation may reasonably direct, to the Parent and the Paying Agent with respect to such Certificate or Warrant, the stock transfer books of Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate or Warrant the Company shall be closed and thereafter there shall be no transfers of any shares of Common Stock. Until surrendered as contemplated by this Section 2.06, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender such portion of the Aggregate Applicable Closing Per Share Merger Consideration, the Per Share Escrow Consideration or Warrant Per Share Merger Consideration, as may be required applicable, with respect to such Certificate to which such Person is entitled pursuant to this Agreement in exchange therefore in respect of such security represented by such Certificate. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the respective portion of the Aggregate Merger Consideration they represent, as provided in this Article 23. (f) Notwithstanding anything else in this Agreement, the portions of Closing Merger Consideration payable to any particular Stockholder upon Closing shall be as set forth opposite such Stockholder’s name on the Payment Schedule; provided, however, that, pursuant to Section 2.06(b), any amounts payable to Actua Holdings shall be reduced by the Closing NOL Adjustment Amount, if any. (g) Any portion of the Aggregate Merger Consideration made available to the Payment Agent pursuant to this Section 2.06 that remains unclaimed by Stockholders 12 months after the time it was delivered to the Payment Agent shall be returned to the Surviving Corporation upon demand. Any such Stockholder who has not exchanged shares of Common Stock for, or otherwise claimed, the applicable portion of the Aggregate Merger Consideration in accordance with this Article 2 prior to that time thereafter will look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Applicable Laws) for payment of the applicable portion of the Aggregate Merger Consideration in respect thereof.