Common use of Post-Closing Adjustment Payment Clause in Contracts

Post-Closing Adjustment Payment. (a) If the Final Cash Consideration is greater than the Estimated Cash Consideration, the Parent (directly or through the Paying Agent) shall promptly (but in any event within five (5) Business Days after the determination of the Final Cash Consideration) pay to (1) those Company Shareholders that have duly executed and delivered a Letter of Transmittal (and such other documents as required by the Letter of Transmittal) as described in Section 1.04 their respective portion of the Company Shareholder Percentage of the amount of such difference and (2) the Surviving Company (for distribution to the holders of the vested In-the-Money Options pursuant to Section 1.03(b)) the Optionholder Percentage of the amount of such difference by wire transfer of immediately available funds to an account designated in writing by the Surviving Company (provided that, in the case of any payment due to any holder who is not a current or former employee of any Group Company, the Paying Agent shall make any such payment directly to such holder rather than through the Company’s payroll system). (b) If the Final Cash Consideration is less than the Estimated Cash Consideration, the Parent and the Representative (on behalf of the Securityholders) shall promptly (but in any event within five (5) Business Days after the determination of the Final Cash Consideration) deliver a joint written instruction to the Escrow Agent to pay to the Parent the lesser of (i) the absolute value of such difference and (ii) the amount in the Escrow Account by wire transfer of immediately available funds from the Escrow Account to one (1) or more accounts designated by the Parent to the Representative and the Escrow Agent. The Securityholders and the Representative shall not have any liability for any amounts due pursuant to this Section 1.09(b) except to the extent of the funds available in the Escrow Account. (c) Exhibit E sets forth an illustrative statement (the “Reference Statement”) prepared in good faith by the Company in cooperation with the Parent setting forth the various line items used (or to be used) in, and illustrating as of the date set forth therein, the calculation of Cash, Indebtedness and Net Working Capital prepared and calculated in accordance with this Agreement.

Post-Closing Adjustment Payment. (a) If the Final Cash Consideration is greater than the Estimated Cash Consideration, the Parent (directly or through the Paying Agent) Buyer shall promptly (but in any event within five two (52) Business Days Days) after the final determination of the Final Cash Consideration) pay to (1) those Company Shareholders that have duly executed and delivered a Letter of Transmittal (and such other documents as required by the Letter of Transmittal) as described in Section 1.04 their respective portion of the Company Shareholder Percentage of the amount of such difference and (2) the Surviving Company (for distribution to the holders of the vested In-the-Money Options Consideration pursuant to Section 1.03(b)) the Optionholder Percentage of 1.03 pay to Seller the amount of such difference by wire transfer of immediately available funds to an account or accounts designated in writing by the Surviving Company (provided that, in the case of any payment due Seller to any holder who is not a current or former employee of any Group Company, the Paying Agent shall make any such payment directly to such holder rather than through the Company’s payroll system)Buyer. (b) If the Final Cash Consideration is less than the Estimated Cash Consideration, the Parent Buyer and the Representative (on behalf of the Securityholders) Seller shall promptly (but in any event within five two (52) Business Days Days) after the final determination of the Final Cash Consideration) Consideration pursuant to Section 1.03 deliver a joint written instruction to the Escrow Agent to pay to the Parent the lesser of (i) Buyer the absolute value of such difference and (ii) the amount in the Escrow Account by wire transfer of immediately available funds from the Escrow Account to one (1) or more accounts designated by the Parent Buyer to the Representative Seller and the Escrow Agent. The Securityholders and the Representative Seller shall not have any liability Liability for any amounts due pursuant to this Section 1.09(b1.04(b) except to the extent of the funds available in the Escrow Account. (c) If Buyer fails to timely deliver the Closing Statement in accordance with Section 1.03, then, at the election of Seller in its sole discretion, either (i) the Final Consideration shall be deemed to equal the Estimated Consideration or (ii) Seller shall retain (at the expense of Buyer) the Dispute Resolution Arbiter to provide an audit or other review of the Group Companies’ books, review the calculation of the Estimated Consideration and make any adjustments necessary thereto, consistent with the provisions of Section 1.03, following which the Estimated Consideration, as adjusted, shall be deemed to be the Final Consideration hereunder (the determination of such Dispute Resolution Arbiter being conclusive and binding on the Parties). (d) Exhibit E A sets forth an illustrative statement (the “Reference Statement”) prepared in good faith by the Company Seller in cooperation with the Parent Buyer setting forth the various line items used (or to be used) in, and illustrating as of the date set forth therein, the calculation of Cash, Indebtedness and Net Working Capital prepared (and calculated a reconciliation to GAAP of the various line items used in accordance with this Agreementthe Audited Balance Sheet).

Post-Closing Adjustment Payment. (a) If the Final Cash Merger Consideration is greater than the Estimated Cash ConsiderationMerger Consideration (the absolute amount of such excess, the “Excess Amount”), then the Parent (directly or through the Paying Agent) shall promptly (but in any event within shall, no later than five (5) Business Days following the final determination, make or cause to be made a payment in cash to the Company Closing Members pro rata in accordance with their ownership interests in the Company at the Effective Time in an aggregate amount equal to the Excess Amount; provided that, to the extent that the Parent does not have sufficient cash on a consolidated basis to make such payment (as reasonably determined by the Parent’s disinterested independent directors, after considering the determination consolidated liabilities of Parent and the reasonable reserves necessary for the continued operation of the Final Cash Consideration) pay business of Parent and its Subsidiaries in the ordinary course), the Parent shall, with respect to (1) those Company Shareholders that have duly executed and delivered a Letter of Transmittal (and such other documents as required by the Letter of Transmittal) as described in Section 1.04 their respective portion amount of the cash shortfall (i) issue to such Company Shareholder Percentage Closing Members, in such pro rata amounts, such number of shares of Parent Class B Common Stock as is equal to the amount of such difference shortfall divided by the Redemption Price and (2ii) cause the Company to issue to such Company Closing Members, in such pro rata amounts, an equal number of Surviving Company (for distribution to the holders of the vested In-the-Money Options pursuant to Section 1.03(b)) the Optionholder Percentage of the amount of such difference by wire transfer of immediately available funds to an account designated in writing by the Surviving Company (provided that, in the case of any payment due to any holder who is not a current or former employee of any Group Company, the Paying Agent shall make any such payment directly to such holder rather than through the Company’s payroll system)Class B Units. (b) If the Final Cash Merger Consideration is less than the Estimated Cash ConsiderationMerger Consideration (the absolute amount of such shortfall, the Parent and “Shortfall”), then the Representative Company Closing Members (on behalf of pro rata in accordance with their ownership interests in the SecurityholdersCompany at the Effective Time) shall promptly (but make a payment in any event within cash to the Parent in an aggregate amount equal to the Shortfall not later than five (5) Business Days after the determination following such final determination. Without limiting any of the Final Cash Consideration) deliver a joint written instruction to the Escrow Agent to pay to rights or remedies of the Parent under this Agreement or at law or equity, if any such Company Closing Member fails or refuses to make such payment, the lesser of (i) Parent shall have the absolute value of such difference and (ii) the amount in the Escrow Account by wire transfer of immediately available funds from the Escrow Account to one (1) or more accounts designated right, as determined by the Parent Representative, in its sole discretion, to claim a portion of the Equity Consideration then owned by such Company Closing Member (including any Parent Class A Common Stock that may have been issued in exchange therefor) up to an amount equal in value (based on the Redemption Price per share of Parent Class B Common Stock and Surviving Company Class B Unit combined) to the Representative and amount owed by such Company Closing Member. In the Escrow Agent. The Securityholders and the Representative shall not have event that such Company Closing Member fails to promptly transfer any liability for any amounts due such equity pursuant to this Section 1.09(b1.15(b), the Parent Representative on behalf of the Parent shall be and hereby is authorized to act as the attorney-in-fact for such Company Closing Member to transfer such Parent Class B Common Stock (or replacement Parent Class A Common Stock) except to the extent Parent and such Surviving Company Class B Units to the Company, each to be immediately cancelled by the Parent and the Company, respectively, and may transfer such equity and cancel the certificates for such equity on the books and records of the funds available in Parent and the Escrow AccountCompany, and may instruct the Parent’s and the Company’s agents and any exchanges on which Parent’s shares are listed or traded to do the same. (c) The Parent Representative and InnoHold shall use commercially reasonable efforts to comply with the timing requirements set forth in this Section 1.15 hereof, but, in the absence of bad faith or willful misconduct, neither Party shall be deemed to be in breach of this Agreement, or to have waived its rights hereunder, solely on the basis of not satisfying the timing requirements set forth therein, so long as they comply with such timing requirements as promptly as practicable. (d) Exhibit E I sets forth an illustrative statement (the “Reference Statement”) prepared in good faith by the Company in cooperation with the Parent setting forth the various line items used (or to be used) in, and illustrating as for sample purposes only, the calculation of Indebtedness and Total Expenses, and the date resulting Cash Consideration, if the Closing occurs based on the assumptions set forth therein, the calculation of Cash, Indebtedness and Net Working Capital in each case prepared and calculated in accordance with this Agreement.

Post-Closing Adjustment Payment. (a) If the Final Cash Consideration is greater than exceeds the Estimated Cash ConsiderationConsideration (such excess, the “Excess Amount”), the Parent (directly or through the Paying Agent) shall promptly (but in any event within five (5) Business Days after the determination of the Final Cash Consideration) pay to (1) those Company Shareholders that have duly executed and delivered a Letter of Transmittal (and such other documents as required by the Letter of Transmittal) as described in Section 1.04 their respective portion of the Company Shareholder Percentage of the amount of such difference and two (2) Business Days) pay the Surviving Company (for distribution to the holders of the vested In-the-Money Options pursuant to Section 1.03(b)) the Optionholder Percentage of the amount of such difference Excess Amount by wire transfer of immediately available funds as follows: (i) to an account designated in writing by the Surviving Company (provided thatPaying Agent, a portion of the Excess Amount equal to the aggregate amount to be paid to Unitholders under this Section 1.10(a) as set forth in the case of any payment due to any holder who is not a current or former employee of any Group CompanyMerger Consideration Schedule, for distribution by the Paying Agent to the Unitholders in accordance with the Merger Consideration Schedule; and (ii) to the Company, a portion of the Excess Amount (for the avoidance of doubt, disregarding any applicable withholding) equal to the aggregate amount to be paid to holders of Vested In-the-Money Options under this Section 1.10(a) as set forth in the Merger Consideration Schedule, for distribution by the Company to such holders (any such payment to be made to any Employee Optionholder, to be reduced by applicable withholdings) through the Company’s payroll system in accordance with the Merger Consideration Schedule (provided, that, notwithstanding the foregoing, if such holder is a Non-Employee Optionholder, then the Parent shall make any make, or cause the Paying Agent to make, such payment directly to such holder via wire transfer to the account(s) designated by such holder in such holder’s Option Acknowledgement Agreement (rather than through the Company’s payroll system)). (b) If the Final Cash Consideration is less than the Estimated Cash Consideration, the Parent and the Representative (on behalf of the Securityholders) shall promptly (but in any event within five two (52) Business Days after the determination of the Final Cash ConsiderationDays) deliver a joint written instruction to the Escrow Agent to pay to the Parent the lesser of (i) the absolute value of such difference and (ii) the amount in the Escrow Account by wire transfer of immediately available funds from the Escrow Account to one (1) or more accounts designated by the Parent to the Representative and the Escrow Agent. The Notwithstanding anything to the contrary in this Agreement, the Securityholders and the Representative shall not have any liability for any amounts due pursuant to Section 1.09 or this Section 1.09(b) 1.10 except to the extent of the funds available in the Escrow Account. (c) Exhibit E D attached hereto sets forth an illustrative statement (the “Reference Statement”) prepared in good faith by the Company in cooperation with the Parent setting forth the various line items used (or to be used) in, and illustrating as of the date set forth therein, the calculation of Cash, Indebtedness and Net Working Capital prepared and calculated in accordance with this Agreement.

Post-Closing Adjustment Payment. (a) If the Final Cash Consideration (as determined in accordance with Section 1.03) is greater less than the Estimated Cash Closing Consideration, the Parent (directly or through the Paying Agent) shall then Purchaser and Seller shall, promptly (but in any event within five (5) Business Days after following the determination of the Final Cash Consideration) pay to (1) those Company Shareholders that have duly executed and delivered a Letter of Transmittal (and such other documents as required by the Letter of Transmittal) as described in Section 1.04 their respective portion of the Company Shareholder Percentage of the amount of such difference and (2) the Surviving Company (for distribution to the holders of the vested In-the-Money Options pursuant to Section 1.03(b)) the Optionholder Percentage of the amount of such difference by wire transfer of immediately available funds to an account designated in writing by the Surviving Company (provided that, in the case of any payment due to any holder who is not a current or former employee of any Group Company, the Paying Agent shall make any such payment directly to such holder rather than through the Company’s payroll system). (b) If the Final Cash Consideration is less than the Estimated Cash Consideration, the Parent and the Representative (on behalf of the Securityholders) shall promptly (but in any event within five (5) Business Days after the determination of the Final Cash Consideration) deliver a joint written instruction to the Escrow Agent to pay to Purchaser from the Parent the lesser of (i) Escrow Fund an amount equal to the absolute value of such difference and (iiin accordance with Section 1.04(c) the amount in the Escrow Account by wire transfer of immediately available funds from the Escrow Account to one (1) or more accounts designated in writing by Purchaser. (b) If the Parent Final Consideration (as determined in accordance with Section 1.03) is greater than the Closing Consideration, then Purchaser shall, promptly but in any event within five (5) Business Days following the determination of the Final Consideration, pay to Seller the absolute value of such difference by wire transfer of immediately available funds to one or more accounts designated in writing by Seller. (c) In the event that the adjustment contemplated by Section 1.04(a) results in amounts owed by Seller to Purchaser, then, in such event, such payments shall be satisfied solely by release to Purchaser of such amounts from the Escrow Fund in accordance with the Escrow Agreement. In the event that the amounts owed by Seller pursuant to Section 1.04(a) exceed the amount of the Escrow Fund, no further payment shall be owed by Seller. In the event that the adjustment contemplated by Section 1.04(b) results in amounts owed by Purchaser to Seller, such amount shall be paid by Purchaser to Seller. Promptly following the determination of the Final Consideration, and any payments made pursuant to this Section 1.04, if there are any amounts remaining in the Escrow Fund, then Purchaser and Seller shall deliver a joint written instruction to the Representative and Escrow Agent to pay to Seller such remaining amounts by wire transfer of immediately available funds to one or more accounts designated in writing by Seller. For the Escrow Agent. The Securityholders and the Representative avoidance of doubt, Seller shall not have any liability for any amounts due pursuant to Section 1.03 or this Section 1.09(b) 1.04 except to the extent of the funds available in the Escrow AccountFund. (cd) Exhibit E sets forth an illustrative statement (the “Reference Statement”) prepared in good faith by the Company in cooperation with the Parent setting forth the various line items used (or All payments required to be usedmade pursuant to Section 1.04(a) in, and illustrating Section 1.04(b) will be deemed to be and shall be treated as of adjustments for Tax purposes to the date set forth therein, aggregate purchase price paid by Purchaser for the calculation of Cash, Indebtedness and Net Working Capital prepared and calculated in accordance with Shares purchased by it pursuant to this Agreement, unless otherwise required by Law.