Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential. (ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent. (iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, such Securityholders’ aggregate Pro Rata Share of the Post-Closing Adjustment.
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Samples: Merger Agreement, Merger Agreement (Quality Systems, Inc)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (In the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If event that the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause determined in accordance with this Section 2.15 to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, owed to Parent, an amount in cash equal to the absolute value Post-Closing Adjustment shall be paid to Parent; first from the Adjustment Escrow Amount, and then from the Indemnity Escrow Amount. In the event the Post-Closing Adjustment is determined in accordance with this Section 2.15 to be owed to the Company Securityholders, the Paying Agent shall promptly pay, and in no event later than ten (10) days following such determination (the “Adjustment Escrow Release Date”), to each Vested Stockholder and Warrantholder, such Vested Stockholder’s and Warrantholder’s Pro Rata Share of the amount Post-Closing Adjustment and Parent shall pay to the Surviving Corporation’s payroll agent for the benefit of the Eligible Optionholders, each Eligible Optionholder’s Pro Rata Share of the Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid Escrow Amount remains after giving effect to Parent. No failure any reductions pursuant to the first sentence of this Section 2.15(d) or disbursements pursuant to the second sentence of this Section 2.15(d), the Adjustment Escrow Amount shall be released and the Paying Agent shall pay on the part of Parent Adjustment Escrow Release Date to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution to the Stockholders, Warrantholders each Vested Stockholder and RSU Holders, in accordance with their respective Pro Rata SharesWarrantholder, such Securityholders’ aggregate Vested Stockholder’s and Warrantholder’s Pro Rata Share of the Post-Closing Adjustmentremaining Adjustment Escrow Amount and shall pay to the Surviving Corporation’s payroll agent for the benefit of the Eligible Optionholders, each Eligible Optionholder’s Pro Rata Share of the remaining Adjustment Escrow Amount.
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Payment of Post-Closing Adjustment. Within five (5) Business Days following the determination of the Final Adjustment Amount with respect to each class of HoldCo Stock: (i) The Closing Merger Consideration if the Net Final Adjustment Amount is negative and the absolute value of the Net Final Adjustment Amount is less than the Adjustment Escrow Amount, an amount equal to the absolute value of the Net Final Adjustment Amount shall be adjusted, which adjustment may be positive or negative released from the Adjustment Escrow Amount to Buyer with the remaining portion released to Sellers’ Representative (the “Post-Closing Adjustment”for disbursement to Sellers), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
; (ii) If if the Post-Closing Net Final Adjustment Amount is a negative numberand the absolute value of the Net Final Adjustment Amount is greater than the Adjustment Escrow Amount, Securityholders’ Representative the Adjustment Escrow Amount shall be released to Buyer and the unpaid portion of the Net Final Adjustment Amount shall, within 5 Business Days, be paid by Sellers to Buyer in cash by wire transfer of immediately available funds to the bank account for Buyer set forth on the Funds Flow Statement or as otherwise provided to Sellers’ Representative pursuant to Section 11.6, at least 2 Business Days prior to the payment thereof; and (iii) if the Net Final Adjustment Amount is positive, Buyer shall, within five (5) Business Days following the determination of the Net Final Adjustment Amount, pay to Sellers’ Representative the amount by which the Net Final Adjustment Amount exceeds the Adjustment Escrow Amount in cash by wire transfer of immediately available funds to Sellers’ Representative as set forth on the Funds Flow Statement or as otherwise provided to Buyer, pursuant to Section 11.6, at least two (2) Business Days after Parent’s written notice of prior to the deficiencypayment thereof, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay and the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice Adjustment Escrow Amount shall be released to Escrow Agent and the SecurityholdersSellers’ Representative specifying such unpaid amount(for disbursement to Sellers). With respect to each class of HoldCo Stock, the Sellers thereof shall be liable on a Joint and Escrow Agent shall pay such amount out Several Basis to Buyer for any amounts payable to Buyer pursuant to clause (ii) of the Escrow Amount; provided, that (a) Securityholderspreceding sentence. Sellers’ Representative shall promptly restoredistribute the appropriate Relevant Final Adjustment Amount to the holders of each class of HoldCo Stock. Notwithstanding the foregoing, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Class A Final Adjustment Amount or the Class B Final Adjustment Amount is positive, the additional amount transferred to Sellers’ Representative by Buyer with respect to such adjustments shall be funded fifty percent (50%) in cash and retained by Parent and fifty percent (b50%) Securityholders shall remain liablein Buyer Common Stock, in proportion to their respective allocation with the number of shares of Buyer Common Stock determined based upon the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to ParentBuyer Stock Price.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, such Securityholders’ aggregate Pro Rata Share of the Post-Closing Adjustment.
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Payment of Post-Closing Adjustment. (i) The Following the final determination of the Closing Merger Consideration Adjustment in accordance with Section 2.03(c), the Purchase Price shall be adjusted, which adjustment may be positive or negative recalculated using such final Closing Adjustment. Any difference between the recalculated Purchase Price and the Purchase Price as it was originally calculated at Closing under Section 2.03(a)(ii) (the “Post-Closing Adjustment”), in the amount) shall be paid to Seller Representative, if anythe recalculated Purchase Price is greater, of or to Buyer, if the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differentialoriginal Purchase Price is greater.
(ii) If Payments to Seller Representative shall be paid by Buyer via wire transfer of immediately available funds to such account as is directed by Seller Representative by the Post-Closing Payment Date. Payments to Buyer shall be paid (1) first from the Closing Adjustment is a negative number, Securityholders’ Representative shall, within two Escrow Amount; (2) Business Days after Parent’s written notice of then, to the deficiencyextent the Closing Adjustment Escrow Amount is insufficient, disburse, or cause to be disbursed from the Net Working Capital FundIndemnity Escrow Amount; (3) then, to the extent the Closing Adjustment Escrow Amount and Indemnity Escrow Amount are insufficient, directly from Seller Representative on behalf of SecurityholdersSeller to Buyer via wire transfer of immediately available funds to such account as is directed by Buyer; in each case, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of by the Post-Closing Payment Date.
(iii) The balance of the Closing Adjustment within Escrow Amount after making the time specified in payments contemplated under Section 2.03(d)(ii), if any, shall be disbursed to Seller Representative for the immediately preceding sentence or benefit of Seller by the Net Working Capital Fund Post-Closing Payment Date. For the avoidance of doubt, if no payment is insufficient due to pay Buyer pursuant to this Section 2.03(d), the entire amount Closing Adjustment Escrow Amount shall be disbursed to Seller Representative for the benefit of Seller.
(iv) Any payment of the Post-Closing Adjustment, Parent may deliver a written notice to together with interest calculated as set forth below, or disbursement from the Closing Adjustment Escrow Agent and Amount or the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Indemnity Escrow Amount; provided, that as the case may be, shall be due (ax) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation within five Business Days of the Merger Consideration, for any portion acceptance of the Post-Closing Adjustment that is not paid to ParentStatement or Statement of Objections, as applicable, or (y) if there are Disputed Amounts, then within five Business Days of the resolution described in Section 2.03(c)(v) (the ACTIVE 209289734v.13 “Post-Closing Payment Date”). No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the The amount of such deficiency to Parent.
(iii) If the any Post-Closing Adjustment is shall bear interest from and including the Closing Date to but excluding the date of payment at a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution rate per annum equal to the Stockholdersprime rate as published in the Wall Street Journal, Warrantholders Eastern Edition on the Closing Date. Such interest shall be calculated daily on the basis of a 365 day year and RSU Holders, in accordance with their respective Pro Rata Shares, such Securityholders’ aggregate Pro Rata Share the actual number of the Post-Closing Adjustmentdays elapsed.
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Payment of Post-Closing Adjustment. (ia) The If the Purchase Price, as finally determined pursuant to Section 4.1, exceeds the Closing Merger Consideration shall be adjustedPurchase Price (such excess, which adjustment may be positive or negative (the “Post-Closing AdjustmentExcess Amount”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shallthen, within two five (25) Business Days after Parent’s written notice of following the deficiencyDetermination Date, disbursethe Purchaser shall pay to the Seller the Excess Amount, or cause to be disbursed together with interest thereon at the Prime Rate accruing from the Net Working Capital FundClosing Date to the date of payment, on behalf of Securityholders, and the Seller and the Purchaser shall provide a joint written instruction to Parent, the absolute value of Escrow Agent to deliver from the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any Seller, by wire transfer of immediately available funds are deducted from to an account designated in writing by the Seller, the full Closing Adjustment Escrow Amount and retained by Parent and Amount.
(b) Securityholders If the Purchase Price, as finally determined pursuant to Section 4.1, is less than the Closing Purchase Price (such shortfall, the “Shortfall Amount”), then, within five (5) Business Days following the Determination Date, the Seller and the Purchaser shall remain liableprovide a joint written instruction to the Escrow Agent to (x) deliver from the Closing Adjustment Escrow Account to the Purchaser, by wire transfer of immediately available funds to an account designated in writing by the Purchaser, up to an amount equal to the Shortfall Amount (to the extent such amount is then remaining in the Closing Adjustment Escrow Account), together with interest thereon at the Prime Rate from the Closing Date to the date of payment, and (y) deliver any funds remaining in the Closing Adjustment Escrow Account following payment of such Shortfall Amount to the Seller, by wire transfer of immediately available funds to an account designated in writing by the Seller. If the Shortfall Amount exceeds the Closing Adjustment Escrow Amount, then, in proportion addition to their respective allocation the foregoing, within five (5) Business Days following the Determination Date, the Seller shall pay to the Purchaser the amount by which the Shortfall Amount is in excess of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid Escrow Amount, together with interest thereon at the Prime Rate accruing from the Closing Date to Parent. No failure on the part date of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parentpayment.
(iiic) If For purposes of this Section 4.2, all computations of interest shall be made on the Post-Closing Adjustment basis of a year of 365 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is a positive numberpayable. The amount of any Excess Amount or Shortfall Amount, then Parent shallas applicable, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution paid pursuant to this Section 4.2 shall be deemed an adjustment to the Stockholders, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, Seller Amount to the extent such Securityholders’ aggregate Pro Rata Share of adjustment affects any amounts that are due to or from the Post-Closing AdjustmentSeller.
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Samples: Stock Purchase Agreement (Universal Technical Institute Inc)
Payment of Post-Closing Adjustment. Subject to Section 2.05(d) and Section 8.05(c):
(i) The If the Post-Closing Merger Consideration shall be adjustedAdjustment is a negative number, which adjustment may be positive or negative (then within three Business Days after the “final determination of the Post-Closing Adjustment”, Purchaser and Securityholder Representative shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund until it is depleted (and then, to the extent the Purchase Price Adjustment Escrow Fund is insufficient for such adjustment, from other Escrow Funds and/or by recovery by offset of amounts otherwise payable by Purchaser or Parent pursuant to this Agreement (the order of recovery from such sources being as determined by the Purchaser Indemnitee)) by wire transfer of immediately available funds (I) to Purchaser, in the amount, if any, of the sum of (A) the Post-Closing Working Capital DifferentialAdjustment, plus and (BII) to the Exchange Agent, for distribution to the Company Securityholders in accordance with their Pro Rata Shares, any amounts remaining in the Purchase Price Adjustment Escrow Fund. The Escrow Funds and recovery by offset of amounts otherwise payable by Purchaser or Parent pursuant to this Agreement shall be the sole recourse of the Purchaser and its Affiliates with respect to the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash DifferentialAdjustment.
(ii) If the Post-Closing Adjustment is a negative positive number, Securityholders’ Representative Purchaser shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) three Business Days after the final determination of the Post-Closing Adjustment, (A) deposit with Paying the Exchange Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, Company Securityholders in accordance with their respective Pro Rata Shares, the amount of such Securityholders’ aggregate Pro Rata Share of the Post-Closing AdjustmentAdjustment and (B) Securityholder Representative and Purchaser shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds to the Exchange Agent, for distribution to the Company Securityholders in accordance with their Pro Rata Shares, the entire balance of the Purchase Price Adjustment Escrow Fund.
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Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative then Parent shall be entitled to payment of an amount equal to the absolute value thereof, which payment shall be satisfied: first, from the Adjustment Escrow Amount (and the Shareholder Representatives and Parent shall instruct the Escrow Agent to disburse such amount, up to the entire Adjustment Escrow Amount, to Parent); second, from the Indemnification Escrow Amount (and the Shareholder Representatives and Parent shall instruct the Escrow Agent to disburse such amount, up to the entire Indemnification Escrow Amount, to Parent); and third, from each Former Holder of Company Capital Stock and Exchanged Options, who shall, within two ten (210) Business Days after Parent’s written notice the Determination Date, pay to Parent his, her or its Pro Rata Share of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the remaining unpaid absolute value of the amount of such Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iiiii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two ten (210) Business Days after the final determination of Determination Date, deposit the Post-Closing Adjustment, deposit Adjustment with the Paying Agent, for distribution who will (A) distribute to the Stockholders, Warrantholders and RSU Holders, Former Holders of Company Capital Stock in accordance with their respective Pro Rata Shares, the amount of each such Securityholders’ aggregate holder’s Pro Rata Share of the Post-Closing Adjustment, and (B) deposit with the Surviving Corporation or its designee payroll service provider, for payment to Former Holders of Exchanged Options (subject to Section 2.18) in accordance with their respective Pro Rata Shares, the amount of each such Former Holder’s Pro Rata Share of the Post- Closing Adjustment.
(iii) Any amounts required to be paid under this Section 2.20(d), shall be accompanied by interest on such amounts from the tenth Business Day following the Determination Date through the date paid at the rate of eight percent (8%) per annum, compounded annually, calculated on the basis of a year of 365 or 366 days (as applicable) and the number of days elapsed since the Determination Date.
(iv) Within five (5) Business Days after the Determination Date, Parent and the Shareholder Representatives shall deliver a joint written instruction to the Escrow Agent to release the remaining portion, if any, of the Adjustment Escrow Amount that has not been disbursed and is not required to be disbursed to Parent pursuant to Section 2.20(d)(i) (A) to the Paying Agent, for distribution to the Former Holders of Company Capital Stock in accordance with their respective Pro Rata Shares, the aggregate of each such holder’s Pro Rata Share of any amounts remaining in the Adjustment Escrow Fund, and (B) to the Surviving Corporation, for distribution to Former Holders of Exchanged Options (subject to Section 2.18), the aggregate of each such holder’s respective Pro Rata Share of any amounts remaining in the Adjustment Escrow Fund.
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Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjustedExcept as otherwise provided herein, which adjustment may be positive or negative (any payment of the “Post-Closing Adjustment, together with interest calculated as set forth below, shall be due (x) within five (5) Business Days of acceptance of the Closing Statement pursuant to clause (ii) above, or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause (v) above.
(i) If the final calculations of Closing Date Debt, Company Transaction Expenses, Cash, Capital Payments Amount, and Final Closing Amount, in each case, pursuant to this Section 2.08, result in a determination of an underpayment by Parent because the Estimated Closing Amount is less than the Final Closing Amount (an “Underpayment Amount”), such Underpayment Amount shall be paid by proportionally increasing the Merger Consideration in accordance with each Equityholder’s Percentage Share with respect to the Cash Merger Consideration, Notes, and Consideration Shares to maintain a ratio such that at no time does the Consideration Shares drop below forty percent (40%) of the aggregate Merger Consideration. The Parties acknowledge and agree that the Underpayment Amount will not result in the amountMerger Consideration exceeding the Adjustment Ceiling. The Parties also acknowledge and agree that notwithstanding anything to the contrary herein, if any, of the sum of (A) the Postno Consideration Shares shall be issued to any Cash-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differentialout Equityholders.
(ii) If the Post-final calculations of Closing Adjustment is a negative numberDate Debt, Securityholders’ Representative shallCompany Transaction Expenses, within two (2) Business Days after Parent’s written notice of the deficiencyCash, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amountPayments Amount, and Escrow Agent Final Closing Amount, in each case, pursuant to this Section 2.08, result in a determination of an overpayment by Parent because the Estimated Closing Amount is more than the Final Closing Amount (an “Overpayment Amount”), such Overpayment Amount shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account be paid by proportionally decreasing Merger Consideration in accordance with each Equityholder’s Percentage Share with respect to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Cash Merger Consideration, for any portion Notes, and Consideration Shares to maintain a ratio such that at no time does the Consideration Shares drop below forty percent (40%) of the Post-Closing Adjustment that is not paid aggregate Merger Consideration. The Parties acknowledge and agree decreases in Consideration Shares pursuant to Parent. No failure on the part of foregoing will be effected by Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the automatically repurchasing an applicable amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution Consideration Shares pursuant to the Stockholders, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, such Securityholders’ aggregate Pro Rata Share Subscription Agreements at a repurchase price of the Post-Closing Adjustment$0.0001 per share.
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Payment of Post-Closing Adjustment. (i) The If the Post-Closing Merger Consideration shall be adjustedAdjustment is a negative number, which adjustment may be positive or negative (Shareholder Representative and Parent shall, no later than three Business Days after the “final determination of the Post-Closing Adjustment”), in jointly instruct the amount, if any, Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of the sum of immediately available funds (A) to Parent, the Post-Closing Working Capital DifferentialAdjustment, plus (B) to the PostExchange Agent, for distribution to the Shareholders and non-Closing Indebtedness Differentialemployee Optionholders in accordance with their Pro Rata Shares, plus such Shareholders’ and Optionholders’ aggregate Pro Rata Share of any amounts remaining in the Purchase Price Adjustment Escrow Fund, and (C) to the Post-Closing Transaction Expenses DifferentialSurviving Corporation, plus (D) (1) for distribution to the Post-Closing Cash Differentialemployee Optionholders in accordance with their Pro Rata Shares, minus (2) such Optionholders’ aggregate Pro Rata Share of any amounts remaining in the Pre-Closing Cash DifferentialPurchase Price Adjustment Escrow Fund.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) no later than three Business Days after the final determination of the Post-Closing Adjustment, (A) deposit with Paying the Exchange Agent, for distribution to the Stockholders, Warrantholders Shareholders and RSU Holders, non-employee Optionholders in accordance with their respective Pro Rata Shares, such SecurityholdersShareholders’ and Optionholders’ aggregate Pro Rata Share of the Post-Closing Adjustment, (B) deposit with the Surviving Corporation, for distribution to the employee Optionholders in accordance with their Pro Rata Shares, such Optionholders’ aggregate Pro Rata Share of the Post-Closing Adjustment, and (C) Shareholder Representative and Parent shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds (1) to the Exchange Agent, for distribution to the Shareholders and non-employee Optionholders in accordance with their Pro Rata Shares, such Shareholders’ and Optionholders’ aggregate Pro Rata Share of the Purchase Price Adjustment Escrow Fund, and (2) to the Surviving Corporation, for distribution to the employee Optionholders in accordance with their Pro Rata Shares, such Optionholders’ aggregate Pro Rata Share of the Purchase Price Adjustment Escrow Fund.
(iii) If the Post-Closing Adjustment is zero, Parent and Shareholder Representative will jointly instruct the Escrow Agent to disburse the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds (a) to the Exchange Agent, for distribution to the Shareholders and non-employee Optionholders in accordance with their Pro Rata Shares, such Shareholders’ and Optionholders’ aggregate Pro Rata Share of the Purchase Price Adjustment Escrow Fund, and (B) to the Surviving Corporation, for distribution to the employee Optionholders in accordance with their Pro Rata Shares, such Optionholders’ aggregate Pro Rata Share of the Purchase Price Adjustment Escrow Fund.
(iv) The amount of any Post-Closing Adjustment shall bear interest from and including the Closing Date to but excluding the date of payment at a rate per annum equal to the Wall Street Journal Prime Rate as published in such newspaper on the Closing Date. Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed, without compounding. Any distributions to Shareholders and Optionholders shall be less any fees payable by Shareholder Representative under this Section 2.17 and not otherwise paid by Shareholder Representative.
(v) The parties agree that the procedures set forth in this Section 2.17(d) for resolving disputes with respect to the Closing Statement and calculations of Closing Working Capital, Closing Cash, Closing Indebtedness and/or the Closing Transaction Expenses constitutes the sole and exclusive method for resolving any such disputes, provided that this provision will not prohibit any party from instituting an Action to enforce the ruling of the Independent Accountant. The Parties further agree that the Purchase Price Adjustment Escrow Fund shall be the sole source for any payment of the Post-Closing Adjustment amount in accordance with this Section 2.17.
Appears in 1 contract
Samples: Merger Agreement (Corelogic, Inc.)
Payment of Post-Closing Adjustment. Following the final determination of the Merger Consideration in accordance with Section 2.7 of the Merger Agreement:
(i) The Closing In the event that the Merger Consideration shall be adjusted, which adjustment may be positive or negative (as finally determined in accordance with Section 2.7 of the Merger Agreement) is less than the Estimated Merger Consideration (the amount of such difference, a “Post-Closing AdjustmentShortfall”), in the amountRepresentative and Parent shall, promptly after such final determination, deliver to the Escrow Agent written instructions signed by Parent and the Representative (a “Joint Instruction”) instructing the Escrow Agent to, and the Escrow Agent shall, disburse from the Escrow Account to Parent, out of the Working Capital Escrow Amount, an amount equal to the Shortfall and pay to the Representative (for distribution by the Representative to the Stockholders and the Gain Share Recipients) the amount of the Working Capital Escrow Amount that remains following such release, if any, of . In no even shall such disbursement exceed the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash DifferentialEscrow Amount.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part the Merger Consideration (as finally determined in accordance with Section 2.7 of the Post-Closing Adjustment within Merger Agreement) is greater than the time specified in Estimated Merger Consideration, the immediately preceding sentence or Representative and Parent shall, promptly after such final determination, deliver to the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent a Joint Instruction instructing the Escrow Agent to, and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; providedshall, that (a) Securityholders’ Representative shall promptly restore, disburse from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from Representative (for distribution by the Escrow Amount Representative to the Stockholders and retained by Parent and (b) Securityholders shall remain liablethe Gain Share Recipients), in proportion to their respective allocation out of the Merger ConsiderationWorking Capital Escrow Amount, for any portion of an amount equal to the Post-Closing Adjustment that is not paid to ParentWorking Capital Escrow Amount. No failure on In no event shall such disbursement exceed the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to ParentWorking Capital Escrow Amount.
(iii) If The Escrow Agent shall act solely upon such Joint Instruction that it receives and shall not be responsible for determining whether the Post-Closing Adjustment payment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, such Securityholders’ aggregate Pro Rata Share of the Post-Closing AdjustmentMerger Agreement.
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Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and number the Securityholders’ Representative specifying such unpaid amount, Agent and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent Acquirer shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with jointly instruct the Escrow Agent to (A) disburse from the Adjustment Escrow Fund by wire transfer of immediately available funds to the Acquirer, without withholding of any taxes, the lesser of the Indemnity Escrow Amount and the absolute amount of the Post-Closing Adjustment (without regard to the fact that it is a negative number), (B) if the absolute amount of the Post-Closing Adjustment is lower than the amount held in the Adjustment Escrow Fund, then disburse from the Adjustment Escrow Fund by wire transfer of immediately available funds to the Paying Agent, for distribution to the Stockholdersholders of Company Shares, Warrantholders vested In-the-Money Options, and RSU Holders, Company Warrants in accordance with their respective Adjustment Escrow Pro Rata Shares, such any amounts remaining in the Adjustment Escrow Fund; and (C) if the absolute amount of the Post-Closing Adjustment is greater than the amount held in the Adjustment Escrow Fund, then the Securityholders’ aggregate Pro Rata Share Agent and Acquirer shall jointly instruct the Escrow Agent to disburse from the Indemnity Escrow Fund by wire transfer of immediately available funds to the Acquirer, without withholding of any taxes, the amount by which the absolute amount of the Post-Closing Adjustment exceeds the full amount held in the Adjustment Escrow Fund.
(ii) If the Post-Closing Adjustment is a positive number or equal to zero, (A) Acquirer shall, within five (5) Business Days after the final determination of the Post-Closing Adjustment, deposit the Post-Closing Adjustment with the Paying Agent in cash by wire transfer of immediately available funds, for distribution to the holders of Company Shares, vested In-the-Money Options, and Company Warrants in accordance with their Adjustment Escrow Pro Rata Shares, and (B) the Securityholders’ Agent and Acquirer shall jointly instruct the Escrow Agent, within five (5) Business Days after the final determination of the Post-Closing Adjustment, to disburse the Adjustment Escrow Fund in full by wire transfer of immediately available funds to the Paying Agent, for distribution to the holders of Company Shares, vested In-the-Money Options, and Company Warrants in accordance with their Adjustment Escrow Pro Rata Shares.
Appears in 1 contract
Payment of Post-Closing Adjustment. (i) The If the Post-Closing Merger Consideration shall be adjustedAdjustment is a negative number, which adjustment may be positive or negative (Stockholder Representative and Parent shall, within two Business Days after the “final determination of the Post-Closing Adjustment”), in jointly instruct the amount, if any, Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of the sum of immediately available funds (A) to Parent, the Post-Closing Working Capital DifferentialAdjustment, plus and (B) to the Exchange Agent, for distribution to the Stockholders in accordance with their Pro Rata Shares, such Stockholders’ aggregate Pro Rata Share of any amounts remaining in the Purchase Price Adjustment Escrow Fund. If the Post-Closing Indebtedness DifferentialAdjustment is greater than the amount held in the Purchase Price Adjustment Escrow Fund, plus (C) then Stockholder Representative and Parent shall jointly instruct the Escrow Agent to, first, disburse from the Stockholder Representative Expense Fund by wire transfer of immediately available funds to Parent the amount by which the Post-Closing Transaction Expenses DifferentialAdjustment exceeds the amount in the Purchase Price Adjustment Escrow Fund (up to the amount in the Stockholder Representative Expense Fund) and, plus (D) (1) second, disburse from the Indemnification Escrow Fund by wire transfer of immediately available funds to Parent the amount by which the Post-Closing Cash Differential, minus Adjustment exceeds the sum of the amounts in the Purchase Price Adjustment Escrow Fund and the Stockholder Representative Expense Fund (2) up to the Pre-Closing Cash Differentialamount in the Indemnification Escrow Fund).
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, (A) deposit with Paying the Exchange Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, Stockholders in accordance with their respective Pro Rata Shares, such SecurityholdersStockholders’ aggregate Pro Rata Share of the Post-Closing Adjustment, and (B) Stockholder Representative and Parent shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds to the Exchange Agent, for distribution to the Stockholders in accordance with their Pro Rata Shares, such Stockholders’ aggregate Pro Rata Share of the Purchase Price Adjustment Escrow Fund.
(iii) The amount of any Post-Closing Adjustment shall bear interest from and including the Closing Date to but excluding the date of payment at a rate per annum equal to the rate of interest from time to time announced publicly by Bank of America as its prime rate, plus 3%. Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed, without compounding.
Appears in 1 contract
Payment of Post-Closing Adjustment. (i) The Following the final determination of the Closing Merger Consideration Adjustment in accordance with Section 2.03(c), the Purchase Price shall be adjusted, which adjustment may be positive or negative recalculated using such final Closing Adjustment. Any difference between the recalculated Purchase Price and the Purchase Price as it was originally calculated at Closing under Section 2.03(a)(ii) (the “Post-Closing Adjustment”), in the amount) shall be paid to Seller Representative, if anythe recalculated Purchase Price is greater, of or to Buyer, if the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differentialoriginal Purchase Price is greater.
(ii) If Payments to Seller Representative shall be paid by Buyer via wire transfer of immediately available funds to such account as is directed by Seller Representative by the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two Payment Date. Payments to Buyer shall be paid (1) first from the Indemnity Escrow Amount and (2) Business Days after Parent’s written notice of then, to the deficiencyextent the Indemnity Escrow Amount is insufficient, disburse, or cause to be disbursed directly from the Net Working Capital Fund, Seller Representative on behalf of SecurityholdersSeller to Buyer via wire transfer of immediately available funds to such account as is directed by Buyer; in each case, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of by the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount Payment Date.
(iii) Any payment of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and together with interest calculated as set forth below, or disbursement from the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Indemnity Escrow Amount; provided, that as the case may be, shall be due (ax) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation within five Business Days of the Merger Consideration, for any portion acceptance of the Post-Closing Adjustment that is not paid to ParentStatement or Statement of Objections, as applicable, or (y) if there are Disputed Amounts, then within five Business Days of the resolution described in Section 2.03(c)(v) (the “Post-Closing Payment Date”). No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the The amount of such deficiency to Parent.
(iii) If the any Post-Closing Adjustment is shall bear interest from and including the Closing Date to but excluding the date of payment at a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution rate per annum equal to the Stockholdersprime rate as published in the Wall Street Journal, Warrantholders Eastern Edition on the Closing Date. Such interest shall be calculated daily on the basis of a 365 day year and RSU Holders, in accordance with their respective Pro Rata Shares, such Securityholders’ aggregate Pro Rata Share the actual number of the Post-Closing Adjustmentdays elapsed.
Appears in 1 contract
Samples: Amendment, Consent and Waiver Agreement (Blackbaud Inc)
Payment of Post-Closing Adjustment. Within five (i5) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If Business Days after the Post-Closing Adjustment is a negative numberdetermined as provided in Section 2.3(c), Securityholders’ (i) in the event of an adjustment increasing the Merger Consideration, (x) the Representative shall, within two and Parent shall jointly instruct the Escrow Agent to release to the Securityholders (2in accordance with the respective percentages set forth on the Escrow Allocation Schedule) Business Days after Parent’s written notice pursuant to the terms and conditions of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to ParentEscrow Agreement, the absolute value of the total amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within Fund from the time specified Escrow Account by wire transfer of immediately available funds to an account or accounts of such Securityholders at one or more financial institutions in accordance with such instructions as the Securityholders may hereafter provide and (y) Parent shall cause to be paid to the Securityholders (in accordance with the relative percentages set forth on the Escrow Allocation Schedule) the amount by which the Post-Closing Operating Capital Adjustment exceeds the Post-Closing Adjustment Fund by wire transfer of immediately available funds to an account or accounts of such Securityholders at one or more financial institutions in accordance with such instructions as the Securityholders may hereafter provide; and (ii) in the immediately preceding sentence or event of an adjustment decreasing the Net Working Capital Fund is insufficient Merger Consideration, the Representative and Parent shall jointly instruct the Escrow Agent to pay release to Parent, in accordance with the entire terms of the Escrow Agreement, the total amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, Operating Capital Adjustment from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to ParentFund by wire transfer of immediately available funds in accordance with such instructions. No failure on the part of Parent to deliver If a notice as specified balance remains in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive numberFund after payment to Parent pursuant to this Section 2.3(d), then concurrently with such payment to Parent, the Representative and Parent shall jointly instruct the Escrow Agent to, and the Escrow Agent shall, within two (2) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agent, for distribution release to the Stockholders, Warrantholders and RSU Holders, Securityholders in accordance with their the respective Pro Rata Shares, percentages set forth on the Escrow Allocation Schedule such Securityholders’ aggregate Pro Rata Share balance by wire transfer of immediately available funds to an account or accounts of such Securityholders at one or more financial institutions in accordance with such instructions as the Post-Closing AdjustmentSecurityholders may hereafter provide.
Appears in 1 contract
Samples: Merger Agreement (Equifax Inc)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ the Company Representative and the Sponsor Designated Directors shall, within two five (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (25) Business Days after the final determination of the Post-Closing Adjustment, jointly instruct the Escrow Agent to (A) disburse from the Post-Closing Adjustment Escrow Shares Fund to the Surviving Company, the Post-Closing Adjustment and (B) instruct the Exchange Agent to distribute any shares remaining in the Post-Closing Adjustment Escrow Shares Fund to the Shareholders in accordance with their Shareholder Pro Rata Shares; provided, that, in no event shall the determination of the Post-Closing Adjustment pursuant to this Section 2.19(e)(i) exceed the number of shares of Parent Common Stock in the Post-Closing Adjustment Escrow Shares Fund and no Shareholder shall be required to forfeit or return any of the Share Consideration received by the Shareholder at the Closing.
(ii) If the Post-Closing Adjustment is a positive number, the Sponsor Designated Directors shall, within five (5) Business Days after the final determination thereof, (A) cause Parent to issue that number of new shares of common stock of Parent equal to the Post-Closing Adjustment divided by the Parent Stock Signing Price, and to deposit such shares with Paying Agentthe Exchange Agent for distribution to the Shareholders in accordance with their Shareholder Pro Rata Shares, and (B) instruct the Escrow Agent to deposit any remaining Post-Closing Adjustment Escrow Shares with the Exchange Agent or the Company, as the case may be, for distribution to the Stockholders, Warrantholders and RSU Holders, Shareholders in accordance with their respective Shareholder Pro Rata Shares (collectively, the “Post-Closing Adjustment Distribution”; provided, that Parent shall not be required under any circumstances to issue more than 857,143 shares of new common stock of Parent (in excess of any remaining Post-Closing Adjustment Escrow Shares, such Securityholders’ aggregate Pro Rata Share of ) pursuant to this Section 2.19(e).
(iii) If the Post-Closing AdjustmentAdjustment is zero (0), no additional action with respect to the Post-Closing Adjustment shall be taken.
(iv) The amount of any Post-Closing Adjustment shall not bear any interest.
Appears in 1 contract
Samples: Merger Agreement (ChaSerg Technology Acquisition Corp)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) Within five Business Days following (1) the Post-Closing Cash Differentialexpiration of the Review Period, minus if the Sellers’ Representative has not delivered a Statement of Objections on or prior to the last day of the Review Period, or (2) if there are Disputed Amounts, resolution pursuant to the Pre-Closing Cash Differential.process described below in Section 2.2(d):
(iii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If if the Post-Closing Adjustment is a positive number, then Parent shall, within two five (25) Business Days after the following final determination of the Post-Closing Adjustment, deposit with Paying Agentthe Purchaser shall deliver or cause to be delivered to each Seller, for distribution by wire transfer of immediately available funds to the Stockholdersaccount or accounts designated by the Sellers’ Representative, Warrantholders and RSU Holders, an amount in accordance with their respective cash equal to each Seller’s Pro Rata SharesPortion of the Post-Closing Adjustment owed to the Sellers; or
(ii) if the Post-Closing Adjustment is a negative number, such Securityholders’ aggregate Pro Rata Share then within five (5) Business Days following final determination of the Post-Closing Adjustment, each Seller shall deliver or cause to be delivered to the Purchaser, by wire transfer of immediately available funds to the account or accounts designated by the Purchaser, an amount in cash equal to such Seller’s Pro Rata Portion of the Post-Closing Adjustment payable to the Purchaser. For the avoidance of doubt, the Purchaser acknowledges that the Banker Family Trust shall satisfy its obligations pursuant to Section 2.2(c)(ii) by means of a decrease in the principal amount of the Trust Note pursuant to Section 6.14. A Seller may satisfy its obligations for its Pro Rata Portion of the Post-Closing Adjustment payable to the Purchaser hereunder by means of a decrease in the principal amount of its Pro Rata Portion of the Seller Note. In the event that a party exercises its rights to decrease the Pro Rata Portion of the Seller Note pursuant to this Section 2.2(c)(ii), the Purchaser shall issue an amended and restated Seller Note reflecting the updated value of the Seller Note (which amended and restated Seller Note shall not, for the avoidance of doubt, revise the payment schedule or any other terms contained therein; provided, however, that the amount of the reduction shall be applied against the next succeeding payment(s) until satisfied in full).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hc2 Holdings, Inc.)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment as finally determined pursuant to this Section 2.6 is a negative number, Securityholders’ Representative shall, within two : (2x) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, if the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of less than the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account then an amount equal to the extent any funds are deducted from difference between the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion absolute value of the Post-Closing Adjustment that shall be paid from the Escrow Account to the Sellers and an amount equal to the absolute value of the Post-Closing Adjustment shall be paid from the Escrow Account to the Purchaser; (y) if the absolute value of the Post-Closing Adjustment is not paid to Parent. No failure on greater than the part of Parent to deliver a notice as specified in Escrow Amount, then the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the full amount of such deficiency the Escrow Amount shall be paid from the Escrow Account to Parent.
the Purchaser and an amount equal to the difference between the absolute value of the Post-Closing Adjustment and the Escrow Amount shall be paid by the Sellers to the Purchaser; and (iiiz) if the absolute value of the Post-Closing Adjustment is equal to the Escrow Amount, then the full amount of the Escrow Amount shall be paid from the Escrow Account to the Purchaser. If the Post-Closing Adjustment as finally determined pursuant to this Section 2.6 is not a positive negative number, then Parent shallan amount equal to the Post-Closing Adjustment shall be paid by the Purchaser to the Sellers, and the Escrow Amount shall be paid from the Escrow Account to the Sellers. Such payment shall be made (i) within two five (25) Business Days after the final determination Determination Date, if the Sellers deliver a Dispute Notice, or (ii) within five (5) Business Days after the conclusion of the Post-Closing AdjustmentDispute Period, deposit with Paying Agentif the Sellers fail to deliver a Dispute Notice, for distribution by wire transfer of immediately available funds to a bank account designated in writing by the Stockholders, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, recipient of such Securityholders’ aggregate Pro Rata Share of the Post-Closing Adjustmentpayment.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Payment of Post-Closing Adjustment. Within five (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (25) Business Days after the final determination of the Closing Working Capital Amount pursuant to this Section 1.18, the Post-Closing Adjustment, deposit with Paying Agentif any, for distribution to shall be paid as provided in this Section 1.18(f). If the StockholdersClosing Working Capital Amount is less than the Estimated Closing Working Capital Amount, Warrantholders and RSU Holders, in accordance with their respective Pro Rata Shares, then the Merger Consideration will be adjusted downward by the amount of such Securityholders’ aggregate Pro Rata Share of shortfall (the “Downward Post-Closing AdjustmentAdjustment Amount”), and (i) Purchaser and Stockholders’ Representative shall deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to pay to Purchaser of the Escrow Funds an amount equal to the Downward Post-Closing Adjustment Amount. If Closing Working Capital Amount is greater than the Estimated Closing Working Capital Amount, then the Merger Consideration will be adjusted upward by the amount of such excess (the “Upward Post-Closing Adjustment Amount”), then Purchaser shall pay to Stockholders in proportion as set forth in the Allocation Spreadsheet, cash in the amount equal to the Upward Post-Closing Adjustment Amount; provided that to the extent such payment would result in the Stockholders receiving more than fifty percent (50%) of the Merger Consideration in cash, then any amount to be paid that would cause the Merger Consideration to be paid with the Stockholders receiving more than fifty percent (50%) of the Merger Consideration in cash (the “50% Cash Threshold”) shall be paid by Purchaser causing to be issued to Stockholders in proportion as set forth in the Allocation Spreadsheet, POWR Shares equal to the Upward Post-Closing Adjustment Amount in excess of the 50% Cash Threshold dividing by the POWR Per Share Value calculated as of the Closing Date (unless the Stockholders’ Representative otherwise consents, in its sole discretion).
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Payment of Post-Closing Adjustment. Within five (5) Business Days following the earlier of (i) The the Accounting Firm’s determination of the Closing Merger Consideration Statement and Post-Closing Adjustment in accordance with Section 1.10(c)(v) or (ii) the date the Closing Statement and Post-Closing Adjustment has become final and binding on the Parties and the Members pursuant to the second (2nd) or third (3rd) sentences of Section 1.10(c)(ii):
(i) If the Post-Closing Adjustment is a negative number, the Member Representative and Parent shall be adjustedfirst jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Account by wire transfer of immediately available funds to an account or accounts designated by Parent, which adjustment may be positive or negative (the “absolute value of the Post-Closing Adjustment”), in the amountand then, if any, the absolute value of the sum of (A) the Post-Closing Working Capital DifferentialAdjustment is less than the funds available in the Purchase Price Adjustment Escrow Account, plus the Member Representative and Parent shall jointly instruct the Escrow Agent to distribute to each Member, by wire transfer of immediately available funds, in accordance with their Allocation Percentages, an amount equal to such Member’s portion of all funds then remaining in the Purchase Price Adjustment Escrow Account (B) after giving effect to the release of funds to Parent as set forth above). If the absolute value of the Post-Closing Indebtedness DifferentialAdjustment is greater than the funds then remaining in the Purchase Price Adjustment Escrow Account, plus (C) then the Post-Closing Transaction Expenses DifferentialEscrow Agent shall disburse all of the funds then in the Purchase Price Adjustment Escrow Account to an account or accounts designated by Parent. Notwithstanding anything to the contrary in this Agreement, plus (D) (1) the Post-Closing Cash Differential, minus (2) Members and the Pre-Closing Cash DifferentialMember Representative shall not have any liability for any amounts due to Parent pursuant to this Section 1.10 in excess of the funds available in the Purchase Price Adjustment Escrow Account.
(ii) If the Post-Closing Adjustment is a negative positive number, Securityholders’ Representative (A) Parent shall, within two at its option, either (2x) Business Days after Parent’s written notice of the deficiency, disbursedeposit, or cause to be disbursed from deposited, with the Net Working Capital FundExchange Agent, on behalf of Securityholders, to Parent, the absolute value of the an amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails cash equal to pay all or part of the Post-Closing Adjustment within or (y) direct the time specified in the immediately preceding sentence Exchange Agent to issue, or the Net Working Capital Fund is insufficient cause to pay the entire amount be issued, an aggregate number of shares of Parent Class A Common Stock equal to (1) the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained divided by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two (2) Business Days after the final determination of the Post-Closing AdjustmentParent Trading Price, deposit with Paying Agentin each case, for distribution to the StockholdersMembers in accordance with their Allocation Percentages, Warrantholders and RSU Holders(B) the Member Representative and Parent shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Account by wire transfer of immediately available funds to the Exchange Agent, for further distribution by the Exchange Agent to each Member, by wire transfer of immediately available funds, in accordance with their respective Pro Rata SharesAllocation Percentages, an amount equal to such Securityholders’ aggregate Pro Rata Share Member’s portion of all funds then remaining in the Post-Closing AdjustmentPurchase Price Adjustment Escrow Account. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent, Merger Subs or the Surviving Companies be liable under this Section 1.10 for any amount in excess of $15,000,000.
Appears in 1 contract
Samples: Merger Agreement (Global Business Travel Group, Inc.)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (Within five Business Days after the “Post-Closing Adjustment”), in the amount, if any, including each of the sum of (A) the Post-Closing Working Capital Differentialcomponents thereof, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.are finally determined pursuant to this Section 2.16:
(iii) If if the Post-Closing Adjustment is a negative number, Securityholders’ Stockholder Representative shall, within two (2) Business Days after Parent’s written notice of and Parent shall jointly instruct the deficiency, disburse, or cause Escrow Agent to be disbursed disburse from the Net Working Capital Fund, on behalf Purchase Price Adjustment Escrow Fund by wire transfer of Securityholders, immediately available funds (A) to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (aB) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from Exchange Agent, for distribution to the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, Company Equityholders in proportion to accordance with their respective allocation Allocation Percentages, such Company Equityholders’ aggregate Allocation Percentage of any amounts remaining in the Merger Consideration, for any portion of Purchase Price Adjustment Escrow Fund. If the Post-Closing Adjustment that is not paid to Parent. No failure on greater than the part of Parent to deliver a notice as specified amount held in the Purchase Price Adjustment Escrow Fund, then Stockholder Representative and Parent shall jointly instruct the Escrow Agent to disburse from the Cash Indemnification Escrow Fund by wire transfer of immediately preceding sentence shall relieve any of Securityholders’ obligations available funds to pay Parent the amount of such deficiency by which the Post-Closing Adjustment exceeds the amount in the Purchase Price Adjustment Escrow Fund (up to Parent.the amount in the Cash Indemnification Escrow Fund); and
(iiiii) If if the Post-Closing Adjustment is a positive number, then Parent shallshall (A) deposit or cause to be deposited with the Exchange Agent, within two (2) Business Days after for distribution to the final determination Company Equityholders in accordance with their respective Allocation Percentages, such Company Equityholders’ aggregate Allocation Percentage of the Post-Closing Adjustment, deposit with Paying in cash, and (B) Stockholder Representative and Parent shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds to the Exchange Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, Company Equityholders in accordance with their respective Pro Rata SharesAllocation Percentages, such SecurityholdersCompany Equityholders’ aggregate Pro Rata Share Allocation Percentage of the Post-Closing Adjustmentamount so deposited by Parent and the Purchase Price Adjustment Escrow Fund.
Appears in 1 contract
Samples: Merger Agreement (OptimizeRx Corp)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment (a) is a negative number, Securityholders’ Representative shall, within two positive amount (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In such positive amount being, the event that Securityholders’ Representative fails “Positive Adjustment Amount”), then the Buyer shall issue, and the Seller shall subscribe for, an additional amount of Vendor Loan Notes which have an aggregate principal value equal to the Shortfall Note Amount (the “Shortfall Notes”) and the subscription price payable by the Seller for the Shortfall Notes shall be satisfied in full by setting off such amount against the Buyer’s obligation in respect of the Positive Adjustment Amount (which Shortfall Notes are issued by the Buyer to the Seller in satisfaction of the Buyer’s obligations pursuant to Article IV to pay all or part the portion of the consideration due to the Seller with respect to the Post-Closing Adjustment within and the time specified in Positive Adjustment Amount, and the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire aggregate principal amount of Shortfall Notes that are required to be issued by the PostBuyer, after giving effect to such set-Closing Adjustmentoff, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account in all cases be equal to the extent any funds are deducted from Shortfall Notes Amount), on the Escrow Amount date that the Final Closing Statement becomes final and retained by Parent and binding pursuant to Section 4.02, or (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay negative amount (the amount of such deficiency positive amount being, the “Negative Adjustment Amount”), the Buyer shall automatically and irrevocably redeem and cancel, on the date that the Final Closing Statement becomes final and binding pursuant to Parent.
(iii) If the Post-Closing Adjustment is a positive numberSection 4.02, then Parent shall, within two (2) Business Days after the final determination such principal amount of the Post-Closing Adjustment, deposit with Paying Agent, for distribution Vendor Loan Notes issued to the Stockholders, Warrantholders Seller as have an aggregate principal value equal to the Negative Adjustment Amount (the “Surplus Notes”) and RSU Holders, in accordance with their respective Pro Rata Shares, (i) the redemption price payable by the Buyer for the Surplus Notes shall be satisfied by setting off such Securityholders’ aggregate Pro Rata Share of amount against the Post-Closing Adjustment.Seller’s
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (John Wiley & Sons, Inc.)
Payment of Post-Closing Adjustment. (i) The Closing Merger A post-closing adjustment to the Cash Consideration shall be adjusted, which adjustment may be positive or negative made as follows (the such event, if any, a “Post-Closing Adjustment”)):
(i) If the difference between Final Working Capital and Estimated Working Capital is less than or equal to the Collar, in the amount, if any, of the sum of (A) the no Post-Closing Adjustment shall be made, and within five (5) Business Days after the determination of Final Working Capital, Shareholder Representative Group and Parent shall jointly instruct the Escrow Agent to disburse from the Working Capital DifferentialEscrow Fund by wire transfer of immediately available funds to the Exchange Agent, plus (B) for distribution to the Post-Closing Indebtedness DifferentialShareholders in Accordance with their Pro Rata Shares, plus (C) such Shareholders’ aggregate Pro Rata Share of the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash DifferentialWorking Capital Escrow Fund.
(ii) If the Post-Closing Adjustment Final Working Capital is a negative numbergreater than the Estimated Working Capital by more than the Collar (such amount that exceeds the Collar, Securityholders’ Representative the “Excess Working Capital”), then Parent shall, within two five (25) Business Days after Parent’s written notice the determination of Final Working Capital, (A) deposit with the Exchange Agent, for distribution to the Shareholders in accordance with their Pro Rata Shares, such Shareholders’ aggregate Pro Rata Share of the deficiencyExcess Working Capital, disburse, or cause and (B) Shareholder Representative Group and Parent shall jointly instruct the Escrow Agent to be disbursed disburse from the Net Working Capital FundEscrow Fund by wire transfer of immediately available funds to the Exchange Agent, on behalf of Securityholdersfor distribution to the Shareholders in Accordance with their Pro Rata Shares, to Parent, the absolute value such Shareholders’ aggregate Pro Rata Share of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment Final Working Capital is a positive numberless than the Estimated Working Capital by more than the Collar (such amount that exceeds the Collar, then the “Working Capital Shortfall”), Shareholder Representative Group and Parent shall, within two five (25) Business Days after the final determination of Final Working Capital, jointly instruct the Post-Closing AdjustmentEscrow Agent to disburse from the Working Capital Escrow Fund by wire transfer of immediately available funds (A) to Parent, deposit with Paying the Working Capital Shortfall, and (B) to the Exchange Agent, for distribution to the Stockholders, Warrantholders and RSU Holders, Shareholders in accordance with their respective Pro Rata Shares, such SecurityholdersShareholders’ aggregate Pro Rata Share of any amounts remaining in the Post-Closing AdjustmentWorking Capital Escrow Fund. If the Working Capital Shortfall is greater than the amount held in the Working Capital Escrow Fund, then the amount by which the Working Capital Shortfall exceeds the amount in the Working Capital Escrow Fund shall be paid from the Indemnification Escrow Fund by wire transfer of immediately available funds to Parent (up to the amount in the Indemnification Escrow Fund).
Appears in 1 contract
Samples: Merger Agreement (Isun, Inc.)
Payment of Post-Closing Adjustment. (i) The Closing Merger Consideration shall be adjusted, which adjustment may be positive or negative (the “Post-Closing Adjustment”), in the amount, if any, of the sum of (A) the Post-Closing Working Capital Differential, plus (B) the Post-Closing Indebtedness Differential, plus (C) the Post-Closing Transaction Expenses Differential, plus (D) (1) the Post-Closing Cash Differential, minus (2) the Pre-Closing Cash Differential.
(ii) If the Post-Closing Adjustment is a negative number, Securityholders’ Stockholder Representative shall, within two (2) Business Days after Parent’s written notice of the deficiency, disburse, or cause to be disbursed from the Net Working Capital Fund, on behalf of Securityholders, to Parent, the absolute value of the amount of Post-Closing Adjustment. In the event that Securityholders’ Representative fails to pay all or part of the Post-Closing Adjustment within the time specified in the immediately preceding sentence or the Net Working Capital Fund is insufficient to pay the entire amount of the Post-Closing Adjustment, Parent may deliver a written notice to Escrow Agent and the Securityholders’ Representative specifying such unpaid amount, and Escrow Agent shall pay such amount out of the Escrow Amount; provided, that (a) Securityholders’ Representative shall promptly restore, from the Net Working Capital Fund, the Escrow Account to the extent any funds are deducted from the Escrow Amount and retained by Parent and (b) Securityholders shall remain liable, in proportion to their respective allocation of the Merger Consideration, for any portion of the Post-Closing Adjustment that is not paid to Parent. No failure on the part of Parent to deliver a notice as specified in the immediately preceding sentence shall relieve any of Securityholders’ obligations to pay the amount of such deficiency to Parent.
(iii) If the Post-Closing Adjustment is a positive number, then Parent shall, within two three (23) Business Days after the final determination of the Post-Closing Adjustment, deposit with Paying Agentjointly deliver written instructions to the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds (A) to Parent, the Post-Closing Adjustment, and (B) to the Indemnifying Holders, for distribution to the StockholdersIndemnifying Holders in accordance with their Pro Rata Shares (and pursuant to the terms of the Escrow Agreement), Warrantholders such Indemnifying Holder’s aggregate Pro Rata Share of any amounts remaining in the Purchase Price Adjustment Escrow Fund, If the Post-Closing Adjustment is greater than the amount held in the Purchase Price Adjustment Escrow Fund, then Stockholder Representative and RSU Parent shall jointly deliver written instructions to the Escrow Agent to disburse from the Indemnification Escrow Fund by wire transfer of immediately available funds to Parent the amount by which the Post-Closing Adjustment exceeds the amount in the Purchase Price Adjustment Escrow Fund (up to the amount in the Indemnification Escrow Fund).
(ii) if the Post-Closing Adjustment is a positive number, Parent shall, within three (3) Business Days after the final determination of the Post-Closing Adjustment, (A) shall distribute to the Indemnifying Holders, in accordance with their respective Pro Rata SharesShare, such Securityholders’ holders of Series A Preferred Stock and Warrant Holder’s aggregate Pro Rata Share of the Post-Closing AdjustmentAdjustment and (B) the Stockholder Representative and Parent shall deliver written instructions to the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds to the Indemnifying Holders, pursuant to the terms of the Escrow Agreement and in accordance with their Pro Rata Shares, such Indemnifying Holder’s aggregate Pro Rata Share of the Purchase Price Adjustment Escrow Fund.
Appears in 1 contract
