Common use of Payment of Merger Consideration; Exchange of Certificates Clause in Contracts

Payment of Merger Consideration; Exchange of Certificates. (a) Prior to the Effective Time, the Former Company Stockholders’ Agent shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to Parent to act as agent (the “Paying Agent”), pursuant to a paying agent agreement in form and substance reasonably acceptable to Parent, for the payment of the Merger Consideration (less the Escrow Amount, the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares), and, at the Effective Time, Parent shall provide to the Paying Agent, by wire transfer of immediately available funds, the amounts necessary for the payment of the Merger Consideration which is payable at Closing hereunder (less the Escrow Amount and the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares). Any and all interest or income earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent. (b) From and after the Effective Time, each holder of a certificate or certificates (“Certificates”) which represented shares of Company Common Stock outstanding immediately prior to the Effective Time shall surrender each Certificate to the Paying Agent, and receive promptly in exchange therefor the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Common Stock evidenced by the Certificates so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Certificates shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Certificate shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the Per Share Merger Consideration but shall, subject to applicable appraisal rights under the DGCL and Section 3.4 of this Agreement, have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of shares of Company Common Stock outstanding immediately prior to the Effective Time. (c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Paying Agent shall pay the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. (d) At the Effective Time, each Optionholder shall receive from the Paying Agent the applicable Option Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Options shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. (e) From and after the Effective Time, each Warrantholder shall surrender each Company Warrant to the Paying Agent, and receive promptly in exchange therefor the applicable Warrant Consideration (less the applicable Escrow Amount and the Working Capital Escrow Amount) into which the Company Warrant so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Company Warrants shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Company Warrant shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the applicable Warrant Consideration but shall have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of the Company Warrants outstanding immediately prior to the Effective Time. (f) In the event any Company Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Warrant to be lost, stolen or destroyed, Paying Agent shall pay the applicable Warrant Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Warrant to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Warrant Certificate alleged to have been lost, stolen or destroyed. (g) If any portion of the Per Share Merger Consideration or Warrant Consideration is to be paid to a Person (other than the Escrow Agent) other than the Person in whose name the applicable Certificate or Company Warrant, as the case may be, is registered, it shall be a condition to such payment that the Certificate or Company Warrant so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Company Warrant or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. (h) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) that remains unclaimed six months after the Effective Time shall be returned to the Parent, upon demand, and any holder who has not surrendered Certificates or Company Warrants for the applicable Per Share Merger Consideration or Warrant Consideration in accordance with this Section 3.5 prior to that time shall thereafter look only to the Parent for payment of such applicable consideration, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation nor the Paying Agent shall be liable to any such holder for any amounts paid to a Governmental Entity pursuant to applicable law relating to abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of the Parent, free and clear of any Liens of any Person previously entitled thereto. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to the Parent upon demand. (i) Each of the Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article III such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign Tax law. If the Surviving Corporation, Parent or the Paying Agent so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock, Company Options or Company Warrants, as the case may be, in respect of which the Surviving Corporation, Parent or the Paying Agent made such deduction or withholding.

Payment of Merger Consideration; Exchange of Certificates. (a) Prior to the Effective Time, the Former Company StockholdersThe Sellers’ Agent Representative shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to Parent to act as agent (the “Paying Agent”), pursuant to a paying agent agreement in form and substance reasonably acceptable to Parent, for the payment from time to time of the Merger Consideration (less upon surrender of Certificates and in connection with the distribution of any additional amounts as may be payable to the Former Company Securityholders from time to time after the Closing pursuant to Section 3.1, Article XI, Article XII or the Escrow Amount, Agreement. The Sellers’ Representative shall be solely responsible for determining the Working Capital Escrow Amount and the portion of the Merger Consideration allocable consideration payable to the Rollover Shares), and, at the Effective Time, Parent shall provide to the Paying Agent, by wire transfer of immediately available funds, the amounts necessary for the payment of the Merger Consideration which is payable at Closing hereunder (less the Escrow Amount and the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares). Any and all interest or income earned on funds made available to the Paying Agent Former Company Securityholders pursuant to this Agreement in respect of their ownership of equity interests in the Company, and none of Parent, the Company or any of their respective Affiliates shall be turned over have any Liability with respect to Parentthe allocation by the Sellers’ Representative of any such consideration to the Former Company Securityholders or any disbursement thereof as directed by the Sellers’ Representative or for any errors or omissions by the Sellers’ Representative in connection therewith. (b) From and after the Effective Time, each holder of a certificate Certificate or certificates (“Certificates”) which represented shares of Company Common Stock outstanding Certificates immediately prior to the Effective Time shall surrender each Certificate to the Paying AgentSellers’ Representative, and receive promptly upon receipt thereof by the Sellers’ Representative the amounts payable under this Agreement in exchange therefor the applicable Per Share Merger Consideration (less the applicable portion respect of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Common Stock evidenced shares represented by the Certificates so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreementsuch Certificate. The surrender of Certificates shall be accompanied by duly completed and executed letters of transmittal in such customary the form attached hereto as may reasonably be agreed Exhibit E (each, a “Letter of Transmittal”). The Sellers’ Representative shall promptly provide to Parent copies of any Letters of Transmittal received by the Company Sellers’ Representative, and ParentParent shall promptly determine whether such Letters of Transmittal have been properly completed and executed. Until so surrendered, each outstanding Certificate shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the Per Share Merger Consideration applicable amounts set forth in this Agreement but shall, subject to applicable appraisal rights under the DGCL and Section 3.4 of this AgreementDGCL, have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of shares of Company Common Stock Stock, outstanding immediately prior to the Effective Time. Upon the request of Parent, the Sellers’ Representative shall promptly deliver to Parent all original Certificates and Letters of Transmittal in the Sellers’ Representative’s possession. (c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit in form satisfactory to the Sellers’ Representative and Parent (but without the posting of a bond) of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Paying Agent the Sellers’ Representative shall pay the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) amounts set forth in this Agreement in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver an agreement of indemnification (but without having to post a bondSection 2.6(c), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. (d) At Upon the Effective Timewritten request of the Sellers’ Representative prior to the date a payment is to be made by Parent to the Former Company Securityholders (or to the Sellers’ Representative, each Optionholder for the benefit of the Former Company Securityholders) hereunder, Parent shall receive from cause a portion of such payment which is payable to Former Company Optionholders, which amounts and the Paying Agent Former Company Optionholders shall be specified in such written request, to be distributed to the Surviving Corporation. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay such amounts to the applicable Option Consideration recipients thereof in accordance with the Sellers’ Representative’s written instructions through the Surviving Corporation’s normal payroll procedures (less the and reduced by applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Options shall have been converted pursuant, and subject to, the provisions of Article III of this Agreementwithholdings). (e) From and after the Effective Time, each Warrantholder shall surrender each Company Warrant to the Paying Agent, and receive promptly in exchange therefor the applicable Warrant Consideration (less the applicable Escrow Amount and the Working Capital Escrow Amount) into which the Company Warrant so surrendered shall have been converted pursuant, and subject to, the provisions of Article III Notwithstanding any other provision of this Agreement. The surrender of Company Warrants shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Company Warrant shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the applicable Warrant Consideration but shall have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of the Company Warrants outstanding immediately prior to the Effective Time. (f) In the event any Company Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Warrant to be lost, stolen or destroyed, Paying Agent shall pay the applicable Warrant Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Warrant to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or Corporation, the Paying Agent with respect to the Warrant Certificate alleged to have been lost, stolen or destroyed. (g) If any portion of the Per Share Merger Consideration or Warrant Consideration is to be paid to a Person (other than Sellers’ Representative and the Escrow Agent) other than the Person in whose name the applicable Certificate or Company Warrant, as the case may be, is registered, it shall be a condition to such payment that the Certificate or Company Warrant so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Company Warrant or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. (h) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) that remains unclaimed six months after the Effective Time shall be returned to the Parent, upon demand, and any holder who has not surrendered Certificates or Company Warrants for the applicable Per Share Merger Consideration or Warrant Consideration in accordance with this Section 3.5 prior to that time shall thereafter look only to the Parent for payment of such applicable consideration, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation nor the Paying Agent shall be liable to any such holder for any amounts paid to a Governmental Entity pursuant to applicable law relating to abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of the Parent, free and clear of any Liens of any Person previously entitled thereto. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to the Parent upon demand. (i) Each of the Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from the cash otherwise deliverable under this Agreement, and from any other consideration otherwise payable paid or delivered in connection with the transactions contemplated by this Agreement, to any Person pursuant to this Article III such amounts that Parent, the Surviving Corporation, the Sellers’ Representative or the Escrow Agent (as it is applicable) are required to deduct and withhold with respect to any such deliveries and payments under the making of such payment under Code or any provision of federalother applicable Law. To the extent that amounts are so rightfully withheld by Parent, state, local or foreign Tax law. If the Surviving Corporation, Parent the Sellers’ Representative or the Paying Agent so withholds amountsEscrow Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock, Company Options or Company Warrants, as the case may be, Person in respect of which such deduction and withholding was made, and Parent, the Surviving Corporation, Parent the Sellers’ Representative or the Paying Agent made Escrow Agent, as applicable, shall disburse such deduction or withholdingwithheld amounts to the applicable Governmental Entity.

Payment of Merger Consideration; Exchange of Certificates. (a) Prior to the Effective Time, the Former Company Stockholders’ Agent Seller shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to Parent to act as agent (the “Paying Agent”), pursuant to a paying agent agreement in form and substance reasonably acceptable to Parent, for the payment from time to time of the Merger Consideration (less upon surrender of Certificates and the cancellation of the Stock Options and in connection with the distribution of any additional amounts as may be payable to the Former Company Stockholders from time to time after the Closing pursuant to Section 3.1, Article XII, Article XIII or the Escrow Amount, Agreement. Seller shall be solely responsible for determining the Working Capital Escrow Amount and the portion of the Merger Consideration allocable amounts payable to the Rollover Shares), and, at the Effective Time, Parent shall provide to the Paying Agent, by wire transfer of immediately available funds, the amounts necessary for the payment of the Merger Consideration which is payable at Closing hereunder (less the Escrow Amount and the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares). Any and all interest or income earned on funds made available to the Paying Agent Former Company Stockholders pursuant to this Agreement in respect of their shares of Preferred Stock and Common Stock and their Stock Options, and none of Parent, the Company or any of their respective Affiliates shall be turned over have any Liability with respect to Parentthe disbursement by Seller of any such amounts to the Former Company Stockholders or for any errors or omissions by Seller in connection therewith. (b) From and after the Effective Time, each holder of a certificate Certificate or certificates (“Certificates”) which represented shares of Company Common Stock outstanding Certificates immediately prior to the Effective Time shall surrender each Certificate to the Paying AgentSeller, and receive promptly upon receipt thereof by Seller the amounts payable under this Agreement in exchange therefor the applicable Per Share Merger Consideration (less the applicable portion respect of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Common Stock evidenced shares represented by the Certificates so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreementsuch Certificate. The surrender of Certificates shall be accompanied by duly completed and executed letters of transmittal in the form attached hereto as Exhibit G (each, a “Letter of Transmittal”). Seller shall promptly provide to Parent copies of any Letters of Transmittal received by Seller, and Parent shall promptly determine whether such customary form as may reasonably be agreed to by the Company Letters of Transmittal have been properly completed and Parentexecuted. Until so surrendered, each outstanding Certificate shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the Per Share Merger Consideration applicable amounts set forth in this Agreement but shall, subject to applicable appraisal rights under the DGCL and Section 3.4 of this AgreementDGCL, have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of shares of Company Preferred Stock or Common Stock Stock, as applicable, outstanding immediately prior to the Effective Time. Upon the request of Parent, Seller shall promptly deliver to Parent all original Certificates and Letters of Transmittal in Seller’s possession. (c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit in form satisfactory to Seller and Parent (but without the posting of a bond) of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Paying Agent Seller shall pay the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) amounts set forth in this Agreement in exchange therefor pursuant to the provisions of Article III Section 2.6(c) (in the case of this Agreement; provided, however, that Preferred Stock) or Section 2.6(d) (in the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner case of such lost, stolen or destroyed Certificate to deliver an agreement of indemnification (but without having to post a bondCommon Stock), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. (d) At the Effective Time, each Optionholder shall receive from the Paying Agent the applicable Option Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Options shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. (e) From and after the Effective Time, each Warrantholder holder of Stock Options shall surrender each Company Warrant to the Paying Agent, and receive promptly in exchange therefor from Seller the applicable Warrant Consideration (less the applicable Escrow Amount and the Working Capital Escrow Amount) amounts, if any, into which the Company Warrant so surrendered Stock Options shall have been converted pursuantpursuant to, and subject to, the provisions of Article III Section 2.6(e). (e) Notwithstanding any other provision of this Agreement. The surrender of Company Warrants shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Company Warrant shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the applicable Warrant Consideration but shall have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of the Company Warrants outstanding immediately prior to the Effective Time. (f) In the event any Company Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Warrant to be lost, stolen or destroyed, Paying Agent shall pay the applicable Warrant Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Warrant to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Warrant Certificate alleged to have been lostCorporation, stolen or destroyed. (g) If any portion of the Per Share Merger Consideration or Warrant Consideration is to be paid to a Person (other than Seller and the Escrow Agent) other than the Person in whose name the applicable Certificate or Company Warrant, as the case may be, is registered, it shall be a condition to such payment that the Certificate or Company Warrant so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Company Warrant or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. (h) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) that remains unclaimed six months after the Effective Time shall be returned to the Parent, upon demand, and any holder who has not surrendered Certificates or Company Warrants for the applicable Per Share Merger Consideration or Warrant Consideration in accordance with this Section 3.5 prior to that time shall thereafter look only to the Parent for payment of such applicable consideration, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation nor the Paying Agent shall be liable to any such holder for any amounts paid to a Governmental Entity pursuant to applicable law relating to abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of the Parent, free and clear of any Liens of any Person previously entitled thereto. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to the Parent upon demand. (i) Each of the Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from the cash otherwise deliverable under this Agreement, and from any other consideration otherwise payable paid or delivered in connection with the transactions contemplated by this Agreement, to any Person pursuant to this Article III such amounts that Parent, the Surviving Corporation, Seller or the Escrow Agent (as it is applicable) are required to deduct and withhold with respect to any such deliveries and payments under the making of such payment under Code or any provision of federalother applicable Law. To the extent that amounts are so rightfully withheld by Parent, state, local or foreign Tax law. If the Surviving Corporation, Parent Seller or the Paying Agent so withholds amountsEscrow Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock, Company Options or Company Warrants, as the case may be, Person in respect of which such deduction and withholding was made, and Parent, the Surviving Corporation, Parent Seller or the Paying Agent made Escrow Agent, as applicable, shall disburse such deduction or withholdingwithheld amounts to the applicable Governmental Entity.

Payment of Merger Consideration; Exchange of Certificates. (a) Prior to the Effective Time, the Former Company StockholdersThe Securityholders’ Agent shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to Parent to act as agent (the “Paying Agent”), pursuant and may appoint designees to a paying agent agreement in form and substance reasonably acceptable to Parentact on its behalf, for the payment of the Merger Consideration (less the Escrow Amount, the Working Capital Escrow Expense Reserve Amount and the any portion of the Merger Consideration allocable attributable to the Rollover Dissenting Shares), ) and, at the Effective Time, Parent shall provide to the Paying AgentAgent or its designees, by wire transfer of immediately available funds, the amounts necessary for the payment of the Merger Consideration which is payable at Closing hereunder (less the Escrow Amount and the Working Capital Escrow Expense Reserve Amount and the any portion of the Merger Consideration allocable attributable to the Rollover Dissenting Shares). Any and all interest or income earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent. (b) From and after the Subsidiary Merger Effective Time, each holder of a an outstanding certificate or certificates (each a “Certificate” and collectively, the “Certificates”) which represented shares of Company Common Stock outstanding capital stock of Amerifit immediately prior to the Effective Time (other than Dissenting Shares) shall surrender each Certificate to the Paying Agent, and receive promptly in exchange therefor for all Certificates held by such holder the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Expense Reserve Amount) into which the Company Common Stock evidenced by the Certificates so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreementset forth on Exhibit 3.2(c). The surrender of Certificates shall be accompanied by duly completed and executed letters of transmittal in such customary the form attached hereto as may reasonably be agreed to by Exhibit 3.7(b) (the Company and Parent“Letters of Transmittal”). Until surrendered, each outstanding Certificate shall be deemed for all corporate purposes from and after the Subsidiary Merger Effective Time to evidence the right to receive the Per Share applicable Merger Consideration but shall, subject to applicable appraisal rights under the DGCL and Section 3.4 3.6 of this Agreement, have no other rights. From and after the Subsidiary Merger Effective Time, there shall be no further registration of transfers on the records of the Company Amerifit of shares of Company Common Stock capital stock outstanding immediately prior to the Subsidiary Merger Effective Time. (c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit (without the posting of a bond) of that fact by the Person claiming such Certificate to be lost, stolen or destroyeddestroyed (in substance reasonably satisfactory to Parent, which shall include provisions for indemnification), the Paying Agent shall pay the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Expense Reserve Amount) in exchange therefor therefore pursuant to the provisions of Article III Section 3.3(c) of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. (d) At From and after the Merger Effective Time, each Optionholder holder of membership interests in the Company shall receive from the Paying Agent upon delivery of a duly executed and completed Ratification of Appointment Agreement, the applicable Option Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Expense Reserve Amount) set forth on Exhibit 3.2(c). (e) From and after the Subsidiary Merger Effective Time and subject to the delivery of an appropriate Letter of Transmittal, each holder of Options shall receive from the Paying Agent the applicable consideration (less withholding and the applicable portion of the Escrow Amount and the Expense Reserve Amount) into which the Company Options shall have been converted pursuant, and subject to, the provisions of Article III Section 3.3(d) of this Agreement. (e) From and after the Effective Time, each Warrantholder shall surrender each Company Warrant to the Paying Agent, and receive promptly in exchange therefor the applicable Warrant Consideration (less the applicable Escrow Amount and the Working Capital Escrow Amount) into which the Company Warrant so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Company Warrants shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Company Warrant shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the applicable Warrant Consideration but shall have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of the Company Warrants outstanding immediately prior to the Effective Time. (f) In the event any Company Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Warrant to be lost, stolen or destroyed, Paying Agent shall pay the applicable Warrant Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Warrant to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Warrant Certificate alleged to have been lost, stolen or destroyed. (g) If any portion of the Per Share Merger Consideration or Warrant Consideration is to be paid to a Person (other than the Escrow Agent) other than the Person in whose name the applicable Certificate or Company Warrant, as the case may be, is registered, it shall be a condition to such payment that the Certificate or Company Warrant so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Company Warrant or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. (h) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) that remains unclaimed six months after the Effective Time shall be returned to the Parent, upon demand, and any holder who has not surrendered Certificates or Company Warrants for the applicable Per Share Merger Consideration or Warrant Consideration in accordance with this Section 3.5 prior to that time shall thereafter look only to the Parent for payment of such applicable consideration, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation nor the Paying Agent shall be liable to any such holder for any amounts paid to a Governmental Entity pursuant to applicable law relating to abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of the Parent, free and clear of any Liens of any Person previously entitled thereto. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to the Parent upon demand. (i) Each of the Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article III such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign Tax law. If the Surviving Corporation, Parent or the Paying Agent so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock, Company Options or Company Warrants, as the case may be, in respect of which the Surviving Corporation, Parent or the Paying Agent made such deduction or withholding.

Payment of Merger Consideration; Exchange of Certificates. (a) Prior to the Effective Time, the Former Company Stockholders’ Agent shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to Parent to act As promptly as agent (the “Paying Agent”), pursuant to a paying agent agreement in form and substance reasonably acceptable to Parent, for the payment of the Merger Consideration (less the Escrow Amount, the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares), and, at the Effective Time, Parent shall provide to the Paying Agent, by wire transfer of immediately available funds, the amounts necessary for the payment of the Merger Consideration which is payable at Closing hereunder (less the Escrow Amount and the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares). Any and all interest or income earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent. (b) From and practicable after the Effective Time, but in no event later than five (5) Business Days thereafter, Acquirer will cause to be distributed to each holder of a certificate or certificates (“Certificates”) which represented record of shares of Company KFI Common Stock outstanding immediately prior to the Effective Time shall surrender each Certificate to the Paying Agent, and receive promptly in exchange therefor the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Common Stock evidenced by the Certificates so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Certificates shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Certificate shall be deemed for all corporate purposes from and after at the Effective Time to evidence the right to receive the Per Share Merger Consideration but shall, subject to applicable appraisal rights under the DGCL and Section 3.4 of this Agreement, have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of shares of Company Common Stock outstanding immediately prior to the Effective Time. (c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Paying Agent shall pay the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. (d) At the Effective Time, each Optionholder shall receive from the Paying Agent the applicable Option Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Options shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. (e) From and after the Effective Time, each Warrantholder shall surrender each Company Warrant to the Paying Agent, and receive promptly in exchange therefor the applicable Warrant Consideration (less the applicable Escrow Amount and the Working Capital Escrow Amount) into which the Company Warrant so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Company Warrants shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Company Warrant shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the applicable Warrant Merger Consideration but as provided in this Agreement a letter of transmittal (which shall have no other rights. From and after the Effective Time, there specify that delivery shall be no further registration effected, and risk of transfers on the records loss and title to certificates shall pass only upon proper delivery of the Company certificates to Acquirer) with a form providing instructions and requesting usual and customary information necessary to facilitate the surrender of certificates representing such shares and effect the Company Warrants outstanding immediately prior to the Effective Time. (f) In the event any Company Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Warrant to be lost, stolen or destroyed, Paying Agent shall pay the applicable Warrant Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Warrant to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Warrant Certificate alleged to have been lost, stolen or destroyed. (g) If any portion of the Per Share Merger Consideration or Warrant Consideration is to be paid to a Person (other than the Escrow Agent) other than the Person in whose name the applicable Certificate or Company Warrant, as the case may be, is registered, it shall be a condition to such payment that the Certificate or Company Warrant so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Company Warrant or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. (h) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a(including fractional shares) that remains unclaimed six months after the Effective Time shall be returned to the Parent, upon demand, and any dividends or distributions which the holder who thereof has not surrendered Certificates the right to receive under Section 2.8(g) for each KFI Converted Common Share (a “Letter of Transmittal”). Upon receipt by Acquirer or Company Warrants for the applicable Per Share Merger Consideration or Warrant Consideration in accordance with this Section 3.5 prior to that time shall thereafter look only to the Parent for payment a paying agent appointed by Acquirer of such applicable considerationa properly completed and executed Letter of Transmittal, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation nor the Paying Agent shall be liable to any such holder for any amounts paid to a Governmental Entity pursuant to applicable law relating to abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders two years after the Effective Time (Acquirer or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property paying agent shall cause a statement of any Governmental Entity) shall become, to the extent permitted by applicable law, the property ownership of the Parent, free and clear of any Liens of any Person previously entitled thereto. Any portion of book-entry shares representing the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a(including fractional shares) to pay for shares be delivered to such holder and payment of Company Common Stock for dividends or distributions which appraisal rights have been perfected shall be returned to the Parent upon demand. (i) Each of the Surviving Corporation, Parent and the Paying Agent such holder shall be entitled to deduct receive in the manner provided in the Letter of Transmittal. A Letter of Transmittal will be deemed received by Acquirer only if Acquirer shall have received a fully and withhold from properly completed and signed (including duly executed transmittal materials included in the consideration otherwise payable Letter of Transmittal) Letter of Transmittal. No interest will be paid on any Merger Consideration that any such holder shall be entitled to any Person receive pursuant to this Article III Section upon such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign Tax law. If the Surviving Corporation, Parent or the Paying Agent so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock, Company Options or Company Warrants, as the case may be, in respect of which the Surviving Corporation, Parent or the Paying Agent made such deduction or withholdingdelivery.

Payment of Merger Consideration; Exchange of Certificates. (a) Prior to the Effective Time, the Former Company Stockholders’ Agent shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to Parent to act as agent (the “Paying Agent”), pursuant to a paying agent agreement in form and substance reasonably acceptable to Parent, ) for the payment of the Merger Consideration (less the Escrow Amount, the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares), and, at the Effective Time, Parent shall provide to the Paying Agent, by wire transfer of immediately available funds, the amounts necessary for the payment of the Merger Consideration which is payable at Closing hereunder (less the Escrow Amount and the Working Capital Escrow Amount and the portion of the Merger Consideration allocable to the Rollover Shares). Any and all interest or income earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent. (b) From and after the Effective Time, each holder of a certificate or certificates (“Certificates”) which represented shares of Company Common Stock outstanding immediately prior to the Effective Time shall surrender each Certificate to the Paying Agent, and receive promptly in exchange therefor the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Common Stock evidenced by the Certificates so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Certificates shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Certificate shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the Per Share Merger Consideration but shall, subject to applicable appraisal rights under the DGCL and Section 3.4 of this Agreement, have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of shares of Company Common Stock outstanding immediately prior to the Effective Time. (c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Paying Agent shall pay the applicable Per Share Merger Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. (d) At the Effective Time, each Optionholder shall receive from the Paying Agent the applicable Option Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) into which the Company Options shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. (e) From and after the Effective Time, each Warrantholder shall surrender each Company Warrant to the Paying Agent, and receive promptly in exchange therefor the applicable Warrant Consideration (less the applicable Escrow Amount and the Working Capital Escrow Amount) into which the Company Warrant so surrendered shall have been converted pursuant, and subject to, the provisions of Article III of this Agreement. The surrender of Company Warrants shall be accompanied by duly completed and executed letters of transmittal in such customary form as may reasonably be agreed to by the Company and Parent. Until surrendered, each outstanding Company Warrant shall be deemed for all corporate purposes from and after the Effective Time to evidence the right to receive the applicable Warrant Consideration but shall have no other rights. From and after the Effective Time, there shall be no further registration of transfers on the records of the Company of the Company Warrants outstanding immediately prior to the Effective Time. (f) In the event any Company Warrant shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Warrant to be lost, stolen or destroyed, Paying Agent shall pay the applicable Warrant Consideration (less the applicable portion of the Escrow Amount and the Working Capital Escrow Amount) in exchange therefor pursuant to the provisions of Article III of this Agreement; provided, however, that the Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Warrant to deliver an agreement of indemnification (but without having to post a bond), in form reasonably satisfactory to the Parent, against any claim that may be made against the Parent, the Surviving Corporation or the Paying Agent with respect to the Warrant Certificate alleged to have been lost, stolen or destroyed. (g) If any portion of the Per Share Merger Consideration or Warrant Consideration is to be paid to a Person (other than the Escrow Agent) other than the Person in whose name the applicable Certificate or Company Warrant, as the case may be, is registered, it shall be a condition to such payment that the Certificate or Company Warrant so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Company Warrant or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable. (h) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) that remains unclaimed six months after the Effective Time shall be returned to the Parent, upon demand, and any holder who has not surrendered Certificates or Company Warrants for the applicable Per Share Merger Consideration or Warrant Consideration in accordance with this Section 3.5 prior to that time shall thereafter look only to the Parent for payment of such applicable consideration, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation nor or the Paying Agent shall be liable to any such holder for any amounts paid to a Governmental Entity pursuant to applicable law relating to abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become the property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of the Parent, free and clear of any Liens of any Person previously entitled thereto. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.5(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to the Parent upon demand. (i) Each of the Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article III such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign Tax law. If the Surviving Corporation, Parent or the Paying Agent so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock, Company Options or Company Warrants, as the case may be, in respect of which the Surviving Corporation, Parent or the Paying Agent made such deduction or withholding.