Payments at Closing. (a) At least two (2) business days before the Closing, the Company shall prepare and deliver to Purchaser the Payment Schedule and a statement (the “Estimated Closing Statement”), setting forth its good faith estimate of Closing Working Capital (the “Estimated Closing Working Capital”), a calculation of Estimated Closing Working Capital, the Company’s good faith estimate of Closing Date Cash (the “Estimated Closing Date Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review of the Estimated Closing Statement, including providing on a timely basis all information reasonably requested in connection with such review and provide information sufficient to allow Purchaser to confirm that the amounts set forth in the Pay-Off Letters are reflective of the corresponding amounts included in the Estimated Closing Statement. (b) Each of the Estimated Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof. (c) At the Closing, Purchaser or Merger Sub shall pay, or cause to be paid: (i) to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 (the “Merger Consideration Adjustment Escrow Amount”); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 prior to the Closing, the portion of the Estimated Merger Consideration attributable to the Common Shares, if any, held by such Stockholder in accordance with the Payment Schedule; provided, further, that, after paying the Estimated Merger Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration; (ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account and disburse in accordance with the terms of this Agreement; and (iii) to the Stockholders’ Representative, an amount equal to the Merger Consideration Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with this Agreement, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for the purpose of securing the obligations of the Securityholders in Section 1.15(d); (iv) the Pay-Off Amount as set forth in the Pay-Off Letters, by wire transfer of immediately available funds to the accounts designated in the Pay-Off Letters; and (v) all unpaid Transaction Expenses set forth on the Estimated Closing Statement to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Closing Statement. (d) At the Closing, upon the terms and subject to the conditions of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment set forth in Section 1.15 and any other relevant definition used in the calculation of payments in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or on behalf of the Securityholders pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligated, as the case may be, to any adjustment to the Merger Consideration required to be paid to or on behalf of the Securityholders pursuant to Section 1.15 (in accordance with their respective Pro-Rata Shares) in respect of their Rollover Securities. (e) Notwithstanding anything to the contrary contained in this Agreement, all amounts payable under this Agreement that are treated as wages (including, without limitation, the Option Surrender Payments) to current and former employees of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system. (f) From 11:59 P.M. on the day immediately prior to the Closing Date and until the consummation of the Closing, the Stockholders’ Representative shall cause the Company not to (i) use any Cash to pay any Transaction Expenses, pay any distributions or to repay any Indebtedness or (ii) incur any Indebtedness.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (CNL Strategic Capital, LLC)
Payments at Closing. No later than ten (a10) At least two (2) business days before prior to the date scheduled for the Closing, the Company Holdings shall prepare and deliver to Purchaser Buyer a written report (the Payment Schedule "Preliminary Closing Statement") setting forth Holdings' estimates of Closing Net Liabilities and Closing Equivalent Subscribers, determined in accordance with Section 2.3, and the Cash Consideration, as adjusted pursuant to Section 2.3 and a statement (list and description of the “Estimated principal methodologies and the principal accounting policies and practices used in the preparation thereof. The Preliminary Closing Statement”), setting forth Statement shall be prepared by Holdings in good faith and shall be certified by Holdings to be its good faith estimate of the Closing Working Capital (the “Estimated Net Liabilities and Closing Working Capital”), a calculation of Estimated Closing Working Capital, the Company’s good faith estimate of Closing Date Cash (the “Estimated Closing Date Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review Equivalent Subscribers as of the Estimated Closing Statement, including providing on a timely basis all date thereof. Holdings shall make available to Buyer such information as Buyer shall reasonably requested in connection with such review and provide information sufficient request relating to allow Purchaser to confirm that the amounts matters set forth in the Pay-Off Letters are reflective Preliminary Closing Statement. If Buyer does not agree with the Closing Net Liabilities, Closing Equivalent Subscribers or Cash Consideration set forth in the Preliminary Closing Statement, then on or prior to the third day prior to the date scheduled for the Closing, Buyer may deliver to Holdings a written report (the "Preliminary Dispute Notice") setting forth in reasonable detail Buyer's good faith estimates (supported by substantial evidence) of any amount set forth in the Preliminary Closing Statement with which Buyer disagrees. In the case of any such estimated amount set forth in the Preliminary Dispute Notice, Holdings and Buyer shall endeavor in good faith to agree prior to the Closing on the appropriate amount of such estimates to be used in calculating the Closing Cash Payment (as defined below). If Holdings and Buyer do not agree on any such amounts by the business day prior to the date scheduled for the Closing, Holdings, at its election, may either:
(a) binding on the parties for purposes of the corresponding estimates to be made at Closing; provided, however, that in no event shall such resolution result in (i) amounts included less than the amounts therefor (in the Estimated case of liabilities) or greater than the amounts therefor (in the case of assets) set forth in the Preliminary Closing Statement.Statement or (ii) amounts greater than the amounts therefor (in the case of liabilities) or less than the amounts therefor (in the case of assets) set forth in the Preliminary Dispute Notice. The costs and expenses of the Referee and its services rendered pursuant to this Section 2.4 shall be borne one-half by Buyer and one-half by Holdings; or
(b) Each of the Estimated Elect to proceed to Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using the same accounting methodscause Buyer, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof.
(c) At at the Closing, Purchaser or Merger Sub shall pay, or cause to be paid:
(i) deposit an amount in cash equal to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 difference (the “Merger Consideration "Adjustment Escrow Amount”") between the Cash Consideration, adjusted pursuant to Section 2.3(a) and (b) that would be calculated using the estimates set forth in the Preliminary Closing Statement (with any changes thereto mutually agreed to by Buyer and Holdings) and the Cash Consideration adjusted pursuant to Section 2.3(a) and (b) that would be calculated using the estimates set forth in the Preliminary Dispute Notice (with any changes thereto mutually agreed to by Buyer and Holdings); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 prior to the ClosingAdjustment Escrow Agent, the portion of the Estimated Merger Consideration attributable to the Common Shares, if any, be held by such Stockholder in accordance with the Payment Schedule; provided, further, that, after paying the Estimated Merger Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration;
(ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account and disburse disbursed in accordance with the terms of this Agreement; and
(iii) to the Stockholders’ Representative, an amount equal to the Merger Consideration Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with this Agreement, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for the purpose of securing the obligations of the Securityholders in Section 1.15(d);
(iv) the Pay-Off Amount as set forth in the Pay-Off Letters, by wire transfer of immediately available funds to the accounts designated in the Pay-Off Letters; and
(v) all unpaid Transaction Expenses set forth on the Estimated Closing Statement to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Closing Statement.
(d) At the Closing, upon the terms and subject to the conditions of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment set forth in Section 1.15 and any other relevant definition used in the calculation of payments in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or on behalf of the Securityholders pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligated, as the case may be, to any adjustment to the Merger Consideration required to be paid to or on behalf of the Securityholders pursuant to Section 1.15 (in accordance with their respective Pro-Rata Shares) in respect of their Rollover Securities.
(e) Notwithstanding anything to the contrary contained in this Agreement, all amounts payable under this Agreement that are treated as wages (including, without limitation, the Option Surrender Payments) to current and former employees of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system.
(f) From 11:59 P.M. on the day immediately prior to the Closing Date and until the consummation of the Closing, the Stockholders’ Representative shall cause the Company not to (i) use any Cash to pay any Transaction Expenses, pay any distributions or to repay any Indebtedness or (ii) incur any Indebtedness.Section
Appears in 1 contract
Samples: Purchase Agreement (Charter Communications Holdings Capital Corp)
Payments at Closing. No later than ten (a10) At least two (2) business days before prior to the date scheduled for the Closing, the Company Holdings shall prepare and deliver to Purchaser Buyer a written report (the Payment Schedule "Preliminary Closing Statement") setting forth Holdings' estimates of Closing Net Liabilities and Closing Equivalent Subscribers, determined in accordance with Section 2.3, and the Cash Consideration, as adjusted pursuant to Section 2.3 and a statement (list and description of the “Estimated principal methodologies and the principal accounting policies and practices used in the preparation thereof. The Preliminary Closing Statement”), setting forth Statement shall be prepared by Holdings in good faith and shall be certified by Holdings to be its good faith estimate of the Closing Working Capital (the “Estimated Net Liabilities and Closing Working Capital”), a calculation of Estimated Closing Working Capital, the Company’s good faith estimate of Closing Date Cash (the “Estimated Closing Date Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review Equivalent Subscribers as of the Estimated Closing Statement, including providing on a timely basis all date thereof. Holdings shall make available to Buyer such information as Buyer shall reasonably requested in connection with such review and provide information sufficient request relating to allow Purchaser to confirm that the amounts matters set forth in the Pay-Off Letters are reflective Preliminary Closing Statement. If Buyer does not agree with the Closing Net Liabilities, Closing Equivalent Subscribers or Cash Consideration set forth in the Preliminary Closing Statement, then on or prior to the third day prior to the date scheduled for the Closing, Buyer may deliver to Holdings a written report (the "Preliminary Dispute Notice") setting forth in reasonable detail Buyer's good faith estimates (supported by substantial evidence) of any amount set forth in the Preliminary Closing Statement with which Buyer disagrees. In the case of any such estimated amount set forth in the Preliminary Dispute Notice, Holdings and Buyer shall endeavor in good faith to agree prior to the Closing on the appropriate amount of such estimates to be used in calculating the Closing Cash Payment (as defined below). If Holdings and Buyer do not agree on any such amounts by the business day prior to the date scheduled for the Closing, Holdings, at its election, may either:
(a) Elect to postpone the Closing and retain Price Waterhouse Coopers (the "Referee") to make a determination as to the appropriate treatment for purposes of agreeing on estimates to be made at Closing of any amounts under dispute and the Closing shall thereafter take place on the third business day following resolution of such dispute, subject to satisfaction or waiver of all applicable conditions precedent. The Referee shall endeavor to resolve the dispute as promptly as practicable and the Referee's resolution of the corresponding dispute shall be final and binding on the parties for purposes of the estimates to be made at Closing; provided, however, that in no event shall such resolution result in (i) amounts included less than the amounts therefor (in the Estimated case of liabilities) or greater than the amounts therefor (in the case of assets) set forth in the Preliminary Closing Statement.Statement or (ii) amounts greater than the amounts therefor (in the case of liabilities) or less than the amounts therefor (in the case of assets) set forth in the Preliminary Dispute Notice. The costs and expenses of the Referee and its services rendered pursuant to this Section 2.4 shall be borne one-half by Buyer and one-half by Holdings; or
(b) Each of the Estimated Elect to proceed to Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using the same accounting methodscause Buyer, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof.
(c) At at the Closing, Purchaser or Merger Sub shall pay, or cause to be paid:
(i) deposit an amount in cash equal to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 difference (the “Merger Consideration "Adjustment Escrow Amount”") between the Cash Consideration, adjusted pursuant to Section 2.3(a) and (b) that would be calculated using the estimates set forth in the Preliminary Closing Statement (with any changes thereto mutually agreed to by Buyer and Holdings) and the Cash Consideration adjusted pursuant to Section 2.3(a) and (b) that would be calculated using the estimates set forth in the Preliminary Dispute Notice (with any changes thereto mutually agreed to by Buyer and Holdings); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 prior to the ClosingAdjustment Escrow Agent, the portion of the Estimated Merger Consideration attributable to the Common Shares, if any, be held by such Stockholder in accordance with the Payment Schedule; provided, further, that, after paying the Estimated Merger Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration;
(ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account and disburse disbursed in accordance with the terms of this Agreement; and
the Adjustment Escrow Agreement and Section 2.5. At Closing, Buyer shall pay (iiix) to the Stockholders’ RepresentativeEscrow Agent the sum of the Indemnity Fund to be held by the Escrow Agent in escrow on behalf of Holdings in accordance with the terms of the Indemnity Agreement and Section 10.4, an amount equal (y) if Holdings has made the election in clause (b) above, to the Merger Consideration Adjustment Escrow Agent, the Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with this Agreement, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for by the purpose of securing the obligations of the Securityholders Adjustment Escrow Agent in Section 1.15(d);
(iv) the Pay-Off Amount as set forth in the Pay-Off Letters, by wire transfer of immediately available funds to the accounts designated in the Pay-Off Letters; and
(v) all unpaid Transaction Expenses set forth on the Estimated Closing Statement to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Closing Statement.
(d) At the Closing, upon the terms and subject to the conditions of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment set forth in Section 1.15 and any other relevant definition used in the calculation of payments in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or escrow on behalf of the Securityholders parties in accordance with the terms of the Adjustment Escrow Agreement and Section 2.5 and (z) to Holdings the amount of the Cash Consideration adjusted pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligated2.3(a) and (b), as the case may be, to any adjustment to the Merger Consideration required to be paid to or on behalf of the Securityholders determined pursuant to Section 1.15 (in accordance with their respective Pro-Rata Shares) in respect of their Rollover Securities.
(e) Notwithstanding anything to the contrary contained in this Agreement, all amounts payable under this Agreement that are treated as wages (including, without limitation, the Option Surrender Payments) to current and former employees of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system.
(f) From 11:59 P.M. on the day immediately prior to the Closing Date and until the consummation of the Closing, the Stockholders’ Representative shall cause the Company not to (i) use any Cash to pay any Transaction Expenses, pay any distributions or to repay any Indebtedness or (ii) incur any Indebtedness.Section
Appears in 1 contract
Samples: Purchase Agreement (Renaissance Media Capital Corp)
Payments at Closing. (a) At least two (2) business days before the Closing, the Company shall prepare and deliver to Purchaser the Payment Schedule and a statement (the “Estimated Closing Statement”), setting forth its good faith estimate of Closing Working Capital (the “Estimated Closing Working Capital”), a calculation of Estimated Closing Working Capital, the Company’s good faith estimate of Closing Date Cash (the “Estimated Closing Date Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review of the Estimated Closing Statement, including providing on a timely basis all information reasonably requested in connection with such review and provide information sufficient to allow Purchaser to confirm that the amounts set forth in the Pay-Off Letters are reflective of the corresponding amounts included in the Estimated Closing Statement.
(b) Each of the Estimated Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof.
(c) At the Closing, Purchaser or Merger Sub shall pay, or cause to be paid:
(i) to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 (the “Merger Consideration Adjustment Escrow Amount”); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 prior to the Closing, the portion of the Estimated Merger Consideration attributable to the Common Shares, if any, held by such Stockholder in accordance with the Payment Schedule; provided, further, that, after paying the Estimated Merger Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration;
(ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account and disburse in accordance with the terms of this Agreement; and
(iii) to the Stockholders’ Representative, an amount equal to the Merger Consideration Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with this Agreement, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for the purpose of securing the obligations of the Securityholders in Section 1.15(d);
(iv) the Pay-Off Amount as set forth in the Pay-Off Letters, by wire transfer of immediately available funds to the accounts designated in the Pay-Off Letters; and
(v) all unpaid Transaction Expenses set forth on the Estimated Closing Statement to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Closing Statement.
(d) At the Closing, upon the terms and subject to the conditions of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Company Class A Common Stock, Company Class B Common Stock, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment set forth in Section 1.15 and any other relevant definition used in the calculation of payments in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or on behalf of the Securityholders pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligated, as the case may be, to any adjustment to the Merger Consideration required to be paid to or on behalf of the Securityholders pursuant to Section 1.15 (in accordance with their respective Pro-Rata Shares) in respect of their Rollover Securities.
(e) Notwithstanding anything to the contrary contained in this Agreement, all amounts payable under this Agreement that are treated as wages (including, without limitation, the Option Surrender Payments) to current and former employees of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system.
(f) From 11:59 P.M. on the day immediately prior to the Closing Date and until the consummation of the Closing, the Stockholders’ Representative shall cause the Company not to (i) use any Cash to pay any Transaction Expenses, pay any distributions or to repay any Indebtedness or (ii) incur any Indebtedness.
Appears in 1 contract
Payments at Closing. (a) At least two No later than ten (210) business days before prior to the date scheduled for the Closing, the Company Falcon shall prepare and deliver to Purchaser the Payment Schedule and Buyer a statement written report (the “Estimated "Preliminary Closing Statement”), ") setting forth Falcon's estimates of Closing Net Liabilities, Closing Equivalent Subscribers, and the Aggregate Consideration, determined in accordance with Section 2.4. The Preliminary Closing Statement shall be prepared by Falcon in good faith and shall be certified by Falcon to be its good faith estimate of the Closing Working Capital (the “Estimated Net Liabilities, Closing Working Capital”), a calculation of Estimated Closing Working Capital, the Company’s good faith estimate of Closing Date Cash (the “Estimated Closing Date Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) Equivalent Subscribers and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review Aggregate Consideration as of the Estimated Closing Statement, including providing on a timely basis all date thereof. Falcon shall make available to Buyer such information as Buyer shall reasonably requested in connection with such review and provide information sufficient request relating to allow Purchaser to confirm that the amounts matters set forth in the Pay-Off Letters are reflective of the corresponding amounts included in the Estimated Preliminary Closing Statement.
(b) Each of the Estimated Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof.
(c) At the Closing, Purchaser or Merger Sub shall pay, or cause to be paid:
(i) to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 (the “Merger Consideration Adjustment Escrow Amount”); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 prior to the Closing, the portion of the Estimated Merger Consideration attributable to the Common Shares, if any, held by such Stockholder in accordance If Buyer does not agree with the Payment Schedule; providedClosing Net Liabilities, further, that, after paying the Estimated Merger Closing Equivalent Subscribers or Aggregate Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration;
(ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account and disburse in accordance with the terms of this Agreement; and
(iii) to the Stockholders’ Representative, an amount equal to the Merger Consideration Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with this Agreement, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for the purpose of securing the obligations of the Securityholders in Section 1.15(d);
(iv) the Pay-Off Amount as set forth in the Pay-Off LettersPreliminary Closing Statement, by wire transfer of immediately available funds then on or prior to the accounts designated in the Pay-Off Letters; and
third (v3rd) all unpaid Transaction Expenses set forth on the Estimated Closing Statement day prior to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Closing Statement.
(d) At date scheduled for the Closing, upon Buyer may deliver to Falcon a written report (the terms and subject to the conditions "Preliminary Dispute Notice") setting forth in reasonable detail Buyer's good faith estimates (supported by substantial evidence) of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment any amount set forth in Section 1.15 and the Preliminary Closing Statement with which Buyer disagrees. In the case of any other relevant definition used such estimated amount set forth in the calculation of payments Preliminary Dispute Notice, Falcon and Buyer shall endeavor in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments good faith to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or on behalf of the Securityholders pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligated, as the case may be, to any adjustment to the Merger Consideration required to be paid to or on behalf of the Securityholders pursuant to Section 1.15 (in accordance with their respective Pro-Rata Shares) in respect of their Rollover Securities.
(e) Notwithstanding anything to the contrary contained in this Agreement, all amounts payable under this Agreement that are treated as wages (including, without limitation, the Option Surrender Payments) to current and former employees of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system.
(f) From 11:59 P.M. on the day immediately agree prior to the Closing Date on the appropriate amount of such estimates to be used in calculating the Closing Payment (as defined below). If Falcon and until Buyer do not agree on any such amounts by the consummation of business day prior to the date scheduled for the Closing, Falcon, at its election, may either:
(1) Elect to postpone the Stockholders’ Representative Closing and retain Price Waterhouse Coopers (Los Angeles, California office) (the "Referee") to make a determination as to the appropriate treatment for purposes of agreeing on estimates to be made at Closing of any amounts under dispute and the Closing shall cause thereafter take place on the Company not third business day following resolution of such dispute, subject to satisfaction or waiver of all applicable conditions precedent. The Referee shall endeavor to resolve the dispute as promptly as practicable and the Referee's resolution of the dispute shall be final and binding on the parties for purposes of the estimates to be made at Closing; provided, however, that in no event shall such resolution result in (i) use any Cash to pay any Transaction Expenses, pay any distributions amounts less than the amounts therefor (in the case of liabilities) or to repay any Indebtedness greater than the amounts therefor (in the case of assets) set forth in the Preliminary Closing Statement or (ii) incur any Indebtedness.amounts greater than the amounts therefor (in the case of liabilities) or less than the amounts therefor (in the case of assets) set forth in the Preliminary
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Falcon Funding Corp)
Payments at Closing. (a1) At least two (2) business days before the Closing, the The Company shall prepare and deliver has delivered to Purchaser the Payment Schedule and Parent a statement written schedule (the “Estimated Closing Statement”), ) setting forth its good faith estimate (i) the name of each Creditor immediately prior to the Effective Time, (ii) the amount of Closing Working Capital Date Indebtedness or other amount owed each Creditor, (iii) the amount of Indebtedness or other liability each Creditor shall have settled pursuant to a Subscription Agreements, (iv) the amount of Closing Assumed Liabilities (other than pursuant to clause “(iii)”) settled as of the Closing, (v) itemized cash payments in the aggregate of One Million Five Hundred Thousand Dollars and wire transfer instructions for the applicable payments of certain Indebtedness, Company Trade Liabilities and Company Transaction Costs by Parent on behalf of the Company at Closing (the “Estimated Parent Closing Working CapitalCash Payments”), a and (vi) the calculation of Estimated Closing Working Capitalthe Parent Consideration Shares, including in reasonable detail the Company’s good faith estimate estimates of the (a) Company Transaction Costs, (b) Closing Date Cash Assumed Liabilities, and (the “Estimated c) Closing Date A/R and Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review estimates of the Estimated Company Transaction Costs, Closing StatementAssumed Liabilities and Closing A/R and Cash, including providing on a timely basis all information reasonably requested in connection with such review and provide information sufficient to allow Purchaser to confirm that the amounts each case as set forth in the Pay-Off Letters are reflective of the corresponding amounts included in the Estimated Closing Statement.
(b) Each of the final Estimated Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using delivered by the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof.
(c) At the Closing, Purchaser or Merger Sub shall pay, or cause Company to be paid:
(i) to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 (the “Merger Consideration Adjustment Escrow Amount”); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 Parent prior to the Closing, shall be referred to as the portion of “Estimated Company Transaction Costs,” “Estimated Assumed Liabilities,” and “Estimated Closing A/R and Cash,” respectively.
(2) Within 120 calendar days following the Estimated Merger Consideration attributable Closing, Parent shall prepare and deliver to the Common SharesRepresentative a written schedule (the “Closing Statement”) setting forth in reasonable detail its calculation of (i) the Company Transaction Costs, if any, held by such Stockholder in accordance with the Payment Schedule; provided, further, that, after paying the Estimated Merger Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration;
(ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account Closing Assumed Liabilities and disburse in accordance with the terms of this Agreement; and
(iii) the Closing A/R and Cash, in each case, as determined pursuant to the Stockholders’ Representative, an amount equal applicable definitions set forth in this Agreement. The Closing Statement shall include such schedules and data with respect to the Merger Consideration Adjustment Escrow Amount determinations set forth therein as may be appropriate to support the calculations set forth therein. Parent shall provide the Representative reasonable access, during regular business hours, in such a manner as to not interfere with the normal operation of Parent or the Surviving Corporation (subject to the execution of customary work paper access letters, if requested) to work papers and books and records relating to the preparation of the Closing Statement solely for the purpose of assisting the Representative in its review of the Closing Statement and the calculations contained therein. If the Representative disagrees with, which may be based on the Representative’s good faith determination that it does not have sufficient information to verify, the calculations in the Closing Statement, the Representative shall notify Parent of such amountdisagreement or deficiency in writing (the “Dispute Notice”) within 45 days after delivery of the Closing Statement. The Dispute Notice must, including to the extent known, set forth in reasonable detail (A) any interest or other amounts earned thereon and less any disbursements therefrom item on the Closing Statement which the Representative believes in good faith has not been prepared in accordance with this AgreementAgreement which may be based on the Representative’s determination that it does not have sufficient information to verify such item, and (B) the Representatives’ alternative calculation of the Company Transaction Costs, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for the purpose of securing the obligations of the Securityholders in Section 1.15(d);
(iv) the Pay-Off Amount as set forth in the Pay-Off Letters, by wire transfer of immediately available funds to the accounts designated in the Pay-Off Letters; and
(v) all unpaid Transaction Expenses set forth on the Estimated Closing Statement to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Assumed Liabilities and/or Closing Statement.
(d) At the Closing, upon the terms A/R and subject to the conditions of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment set forth in Section 1.15 and any other relevant definition used in the calculation of payments in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or on behalf of the Securityholders pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligatedCash, as the case may be, if the Representative determines in good faith that it has sufficient information to calculate such amounts, together with all relevant supporting documentation. Any item or amount that Representative does not dispute as provided above in the Dispute Notice within such 45-day period shall be final, binding and conclusive for all purposes hereunder. In the event any adjustment such Dispute Notice is timely provided, Parent and the Representative shall use commercially reasonable efforts for a period of 30 days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the Merger Consideration required calculations included in the Closing Statement that were disputed in the Dispute Notice. If, at the end of such period, the Representative and Parent remain unable to resolve the dispute in its entirety, then the unresolved items and amounts thereof in dispute shall be paid submitted to a nationally recognized independent accounting firm, mutually acceptable to Parent and Representative, which shall not be the independent accountants of Parent or the Company (the “Dispute Auditor”). The Dispute Auditor shall determine, based solely on behalf the written presentations by the Representative and Parent, and not by independent review, only those items and amounts that remain then in dispute as set forth in the Dispute Notice. In rendering its decision, the Dispute Auditor shall adhere to and be bound by the provisions of this Section 3.5(b) and the applicable definitions set forth in this Agreement. The Dispute Auditor’s determination of the Securityholders Company Transaction Costs, the Closing Assumed Liabilities and/or the Closing A/R and Cash, as applicable, shall be made within 45 days after the dispute is submitted for its determination and shall be set forth in a written statement delivered to the Representative and Parent. A judgment of a court of competent jurisdiction selected pursuant to Section 1.15 (9.11 hereof may be entered upon the Dispute Auditor’s determination. The Dispute Auditor shall have exclusive jurisdiction over, and resorting to the Dispute Auditor as provided in accordance this Section 3.5(b) shall be the only recourse and remedy of the Parties against one another with respect to, those items and amounts that remain in dispute under this Section 3.5(b), and no Parent Indemnitee or Creditor Indemnitee shall be entitled to seek indemnification or recovery of any Losses, including attorneys’ fees or other professional fees incurred by Parent or the Representative, as applicable, in connection with any dispute governed by this Section 3.5(b). The Dispute Auditor shall allocate its fees and expenses between the Parent and the Representative according to the degree to which the positions of the respective Parties are not accepted by the Dispute Auditor. The Representative and Parent shall, and shall cause their respective ProAffiliates and representatives to, cooperate in good faith with the Dispute Auditor, and shall give the Dispute Auditor access to all data and other information (or, in the case of data or other information not in the possession of such Party, use commercially reasonable efforts to cause such access to be provided) it reasonably requests for purposes of such resolution. In no event shall the decision of the Dispute Auditor assign a value to any item greater than the greatest value for such item claimed by either Parent or the Representative or lesser than the smallest value for such item claimed by either Parent or the Representative. Any determinations made by the Dispute Auditor pursuant to this Section 3.5(b) shall be final, non-Rata Shares) in respect of their Rollover Securities.
(e) appealable and binding on the Parties hereto, absent manifest error or fraud. Notwithstanding anything any provision herein to the contrary contained and for the avoidance of doubt, in no event shall Company Transaction Costs, Closing Date Indebtedness or Closing Assumed Liabilities include (and the adjustments and payments contemplated by this AgreementSection 3.5 shall be determined without regard to) any obligations, all amounts payable under this Agreement that are treated as wages (liabilities or commitments incurred in connection with or relating to the PPP Loan, including, without limitation, the Option Surrender Payments) repayment obligations that arise or are expected to current and former employees arise, are triggered or become due or payable, in whole or in part, as a direct or indirect result of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system.
consummation (fwhether alone or in combination with any other event or circumstance) From 11:59 P.M. on the day immediately prior to the Closing Date and until the consummation of the Closing, Merger or any of the Stockholders’ Representative shall cause the Company not to (i) use any Cash to pay any Transaction Expenses, pay any distributions or to repay any Indebtedness or (ii) incur any Indebtednessother transactions contemplated hereby.
Appears in 1 contract
Payments at Closing. (a) At least two No later than ten (210) business days before prior to the date scheduled for the Closing, the Company Falcon shall prepare and deliver to Purchaser the Payment Schedule and Buyer a statement written report (the “Estimated "Preliminary Closing Statement”), ") setting forth Falcon's estimates of Closing Net Liabilities, Closing Equivalent Subscribers, and the Aggregate Consideration, determined in accordance with Section 2.4. The Preliminary Closing Statement shall be prepared by Falcon in good faith and shall be certified by Falcon to be its good faith estimate of the Closing Working Capital (the “Estimated Net Liabilities, Closing Working Capital”), a calculation of Estimated Closing Working Capital, the Company’s good faith estimate of Closing Date Cash (the “Estimated Closing Date Cash”), the Company’s good faith estimate of Closing Date Indebtedness (the “Estimated Closing Date Indebtedness Amount”) Equivalent Subscribers and the Company’s good faith estimate of unpaid Transaction Expenses (the “Estimated Closing Date Transaction Expenses”). The Company shall, and shall cause its Representatives to, cooperate and assist Purchaser and its Representatives in their review Aggregate Consideration as of the Estimated Closing Statement, including providing on a timely basis all date thereof. Falcon shall make available to Buyer such information as Buyer shall reasonably requested in connection with such review and provide information sufficient request relating to allow Purchaser to confirm that the amounts matters set forth in the Pay-Off Letters are reflective of the corresponding amounts included in the Estimated Preliminary Closing Statement.
(b) Each of the Estimated Closing Statement and Merger Consideration Adjustment Statement shall be prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the audited Financial Statements for the most recent fiscal year end as if such Estimated Closing Statement was being prepared and audited as of a fiscal year end and as set forth on Exhibit G (collectively, the “Accounting Methodologies”). The Estimated Closing Statement shall describe in reasonable detail the nature of such determination, including the basis for the specific items involved and the dollar amounts thereof.
(c) At the Closing, Purchaser or Merger Sub shall pay, or cause to be paid:
(i) to the Stockholders’ Representative or its designee, for the benefit of the Stockholders, by wire transfer of immediately available funds, the Estimated Merger Consideration less an amount equal to $500,000 (the “Merger Consideration Adjustment Escrow Amount”); provided, that the Stockholders’ Representative or its designee shall promptly deliver to each Stockholder who has complied with Section 1.16 prior to the Closing, the portion of the Estimated Merger Consideration attributable to the Common Shares, if any, held by such Stockholder in accordance If Buyer does not agree with the Payment Schedule; providedClosing Net Liabilities, further, that, after paying the Estimated Merger Closing Equivalent Subscribers or Aggregate Consideration to the Stockholders’ Representative, neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any liability to any Person for the allocation of such amounts among the Stockholders, who shall look solely to the Stockholders’ Representative for the payment of their respective portion of the Estimated Merger Consideration;
(ii) to the Stockholders’ Representative, by wire transfer of immediately available funds, an amount equal to the Representative Expense Amount, for the Stockholders’ Representative to hold in the Representative Expense Account and disburse in accordance with the terms of this Agreement; and
(iii) to the Stockholders’ Representative, an amount equal to the Merger Consideration Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with this Agreement, the “Merger Consideration Adjustment Escrow Fund”) by wire transfer of immediately available funds to a segregated account designated by the Stockholders’ Representative, to be held for the purpose of securing the obligations of the Securityholders in Section 1.15(d);
(iv) the Pay-Off Amount as set forth in the Pay-Off LettersPreliminary Closing Statement, by wire transfer of immediately available funds then on or prior to the accounts designated in the Pay-Off Letters; and
third (v3rd) all unpaid Transaction Expenses set forth on the Estimated Closing Statement day prior to the payees thereof, by wire transfer of immediately available funds to the accounts designated in advance by each payee thereof, as set forth on the Estimated Closing Statement.
(d) At date scheduled for the Closing, upon Buyer may deliver to Falcon a written report (the terms and subject to the conditions "Preliminary Dispute Notice") setting forth in reasonable detail Buyer's good faith estimates (supported by substantial evidence) of this Agreement and the applicable Exchange Agreement between each Rollover Securityholder and the Surviving Company, each of the Rollover Securityholders will exchange, effective immediately after the Effective Time, the Rollover Securities owned by such Rollover Securityholder as listed on Exhibit F attached hereto for the shares of the Surviving Company listed opposite such Rollover Securityholder’s name on Exhibit F attached hereto (such transactions, the “Rollover Investment”). All Rollover Securities to be so exchanged shall be deemed to be outstanding for all purposes, including the definitions of Common Shares, Stock Option and Pro-Rata Share, as applicable, and for purposes of calculating the Merger Consideration and the adjustment any amount set forth in Section 1.15 and the Preliminary Closing Statement with which Buyer disagrees. In the case of any other relevant definition used such estimated amount set forth in the calculation of payments Preliminary Dispute Notice, Falcon and Buyer shall endeavor in respect of Common Shares or Stock Options that are not being so exchanged. For all purposes other than in respect of the cash payments good faith to be made on the Closing Date pursuant to Section 1.14(c), the Rollover Securityholders who make a Rollover Investment shall be deemed the owner of the Rollover Securities, including for purposes of any Post-Closing Adjustment Amount owed to or on behalf of the Securityholders pursuant to Section 1.15. For the avoidance of doubt, each Rollover Securityholder shall not be entitled to payment in cash of any portion of the Merger Consideration in respect of their Rollover Securities but shall be entitled or obligated, as the case may be, to any adjustment to the Merger Consideration required to be paid to or on behalf of the Securityholders pursuant to Section 1.15 (in accordance with their respective Pro-Rata Shares) in respect of their Rollover Securities.
(e) Notwithstanding anything to the contrary contained in this Agreement, all amounts payable under this Agreement that are treated as wages (including, without limitation, the Option Surrender Payments) to current and former employees of the Acquired Companies shall be paid to the Acquired Companies, which shall pay such amounts, less applicable withholding Taxes, to the respective recipient through their payroll system.
(f) From 11:59 P.M. on the day immediately agree prior to the Closing Date on the appropriate amount of such estimates to be used in calculating the Closing Payment (as defined below). If Falcon and until Buyer do not agree on any such amounts by the consummation of business day prior to the date scheduled for the Closing, Falcon, at its election, may either:
(1) Elect to postpone the Stockholders’ Representative Closing and retain Price Waterhouse Coopers (Los Angeles, California office) (the "Referee") to make a determination as to the appropriate treatment for purposes of agreeing on estimates to be made at Closing of any amounts under dispute and the Closing shall cause thereafter take place on the Company not third business day following resolution of such dispute, subject to satisfaction or waiver of all applicable conditions precedent. The Referee shall endeavor to resolve the dispute as promptly as practicable and the Referee's resolution of the dispute shall be final and binding on the parties for purposes of the estimates to be made at Closing; provided, however, that in no event shall such resolution result in (i) use any Cash to pay any Transaction Expenses, pay any distributions amounts less than the amounts therefor (in the case of liabilities) or to repay any Indebtedness greater than the amounts therefor (in the case of assets) set forth in the Preliminary Closing Statement or (ii) incur any Indebtedness.amounts greater than the amounts therefor (in the case of liabilities) or less than the amounts therefor (in the case of assets) set forth in the Preliminary Dispute Notice. The costs and expenses of the Referee and its services rendered pursuant to this Section 2.5 shall be borne one-half by Buyer and one-half by Sellers; or
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Charter Communications Inc /Mo/)
