Common use of Post-Closing Payments Clause in Contracts

Post-Closing Payments. As soon as practicable following the determination of all or any portion of the Shortfall Amount, the following procedures shall apply: (i) To the extent that the Shortfall Amount is less than or equal to the amount of the Allocated Escrow Basket (the portion of the Shortfall Amount up to and including the Allocated Escrow Basket, the “Initial Shortfall Amount”), the Escrow Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) an amount of cash held in the Escrow Fund equal to the Initial Shortfall Amount by wire transfer of immediately available funds to an account designated in writing by Parent to the Escrow Agent. (ii) If the Shortfall Amount exceeds the amount of the Allocated Escrow Basket (such amount in excess of the Allocated Escrow Basket, the “Excess Shortfall Amount”), in Parent’s sole and absolute discretion, either: (1) the Escrow Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) both the Allocated Escrow Basket and the Excess Shortfall Amount from the Escrow Fund by wire transfer of immediately available funds to an account designated in writing by Parent to the Escrow Agent; or (2) the Escrow Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) an amount of cash held in the Escrow Fund equal to the Allocated Escrow Basket by wire transfer of immediately available funds to an account designated in writing by Parent to the Escrow Agent and the Company Stockholders shall promptly pay to Parent, in accordance with their respective Pro Rata Portions, an aggregate amount of cash equal to the Excess Shortfall Amount; provided, however, that if any Company Stockholder shall fail to so pay its respective Pro Rata Portion of the Excess Shortfall Amount pursuant to and in accordance with this clause (2), Parent may (in its sole and absolute discretion) either commence legal proceedings to specifically enforce the terms of this clause (2) against such Company Stockholder and/or instruct the Escrow Agent to release from the Escrow Fund and deliver to Parent the difference between the Excess Shortfall Amount and the amount of money actually received by Parent from the Company Stockholders pursuant to this clause (2).

Post-Closing Payments. As soon as practicable following the determination of all or any portion of the Shortfall Amount, the following procedures shall apply: (i) To If the extent that Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.3 is negative (the Shortfall Amount is less absolute value of such negative amount, the “Post-Closing Deficit”), then Seller shall be obligated to pay Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall be paid to Parent, (A) first, from the Adjustment Escrow Fund (and not later than or five Business Days following such final determination Parent and Seller shall provide a joint written instruction to the Escrow Agent to deliver to Parent an amount in cash equal to the amount of the Allocated Post-Closing Deficit from the Adjustment Escrow Basket Fund or, if the Post-Closing Deficit is greater than the Adjustment Escrow Fund, an amount in cash equal to the entire Adjustment Escrow Fund) and (B) second, to the extent that the Post-Closing Deficit is greater than the Adjustment Escrow Fund, the excess amount of the Post-Closing Deficit over the Adjustment Escrow Fund from Seller. For avoidance of doubt, any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 6.3. (ii) If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.3 is positive (the portion of the Shortfall Amount up to and including the Allocated Escrow Basket, the “Initial Shortfall AmountPost-Closing Surplus”), the Escrow Agent shall promptly release (and the Stockholder Representative and then Parent shall each instruct pay Seller the Escrow Agent to release) an amount of cash held in the Escrow Fund equal to the Initial Shortfall Amount Post-Closing Surplus by wire transfer of immediately available funds to an the account designated in writing by Parent to the Escrow AgentSeller for such purpose not later than five Business Days following such designation. (iiiii) If If, following the Shortfall Amount exceeds the amount final determination of the Allocated Escrow Basket (such amount in excess of the Allocated Escrow BasketPost-Closing Adjustment Amount pursuant to this Section 1.3 and any payments that may be required pursuant to Section 1.3(e)(i), the “Excess Shortfall Amount”)Adjustment Escrow Fund has not been exhausted, in Parent’s sole not later than 10 Business Days following such final determination Parent and absolute discretion, either: (1) the Escrow Agent Seller shall promptly release (and the Stockholder Representative and Parent shall each instruct provide a joint written instruction to the Escrow Agent to release) both the Allocated Escrow Basket and the Excess Shortfall Amount from the Escrow Fund by wire transfer of immediately available funds deliver to an account designated in writing by Parent to the Escrow Agent; or (2) the Escrow Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) an amount of cash held Seller any amounts remaining in the Adjustment Escrow Fund equal to the Allocated Escrow Basket by wire transfer of immediately available funds to an account designated in writing by Parent to the Escrow Agent and the Company Stockholders shall promptly pay to Parent, in accordance with their respective Pro Rata Portions, an aggregate amount of cash equal to the Excess Shortfall Amount; provided, however, that if any Company Stockholder shall fail to so pay its respective Pro Rata Portion of the Excess Shortfall Amount pursuant to and in accordance with this clause (2), Parent may (in its sole and absolute discretion) either commence legal proceedings to specifically enforce the terms of this clause (2) against such Company Stockholder and/or instruct the Escrow Agent to release from the Escrow Fund and deliver to Parent the difference between the Excess Shortfall Amount and the amount of money actually received by Parent from the Company Stockholders pursuant to this clause (2)Fund.

Post-Closing Payments. As soon FNB and Sequoia agree that Wells Fargo Bank, National Association, or another bank or trust compaxx xxreafter designated by FNB and approved by Sequoia shall act as practicable following the determination escrow agent (the "Escrow Agent") for the sum of all or any portion $1,500,000 held back from the Closing Payment Amount pursuant to Section 1.9(a) above. Contemporaneous with execution and delivery of the Shortfall AmountConsolidation Agreement, FNB, the following procedures Interim National Bank, Sequoia and the Escrow Agent shall apply: enter into an agreement, substantially in the form attached hereto as Exhibit C (i) To the extent that "Escrow Agent Agreement"), providing for the Shortfall Amount is less than or equal rights, duties and obligations of the Escrow Agent in relation to this Agreement. At the Effective Time, in accordance with Section 1.9(a), FNB shall cause the $1,500,000 hold-back to be delivered to the amount Escrow Agent for deposit into an account (the "Escrow Account") to be established, administered and disbursed by the Escrow Agent in accordance with the provisions of the Allocated Escrow Basket (Agent Agreement. Also at the portion Effective Time, in accordance with Section 3.2 of this Agreement, HNB shall cause the Shortfall Amount up Stock Purchase Price to and including be delivered to the Allocated Escrow Basket, Agent for deposit into the “Initial Shortfall Amount”)Escrow Account. Pursuant to the Escrow Agent Agreement, the Escrow Agent shall promptly release forward an amount equal to the Stock Purchase Price (within one (1) business day after receipt of good funds from HNB) to the Paying Agent for deposit into the Payment Fund and disposition in accordance with the Paying Agent Agreement. The Escrow Agent may utilize the funds held in the Escrow Account (as authorized by the terms of the Escrow Agent Agreement) to indemnify and reimburse FNB for (i) the federal and state franchise taxes due in respect of the Stock Purchase, (ii) the present value of lost tax benefits associated with Sequoia's net operating losses versus the tax amortization of intangible assets resulting from the Consolidation, (iii) any Internal Revenue Service challenge of the net operating losses available to FNB, or any decrease in the net operating losses available to FNB as a result of the Stock Purchase, (iv) all additional filing fees, out-of-pocket expenses (including reasonable fees and expenses of attorneys) and costs (including the amount of paid-in capital required by the OCC to the extent contributed by FNB and retained as paid-in capital of the Consolidated Bank following the Liquidation and prior to the Stock Purchase) associated with the formation of the Interim National Bank, (v) the obligations of Sequoia to indemnify FNB, the Interim National Bank and the Stockholder Representative Consolidated Bank as provided under Section 1.8, including any claim made by an optionee against the Paying Agent regarding the correct amount due to such optionee for the cancellation of his or her stock options and Parent stock option agreements, (vi) the payment for any Dissenting Shares (including attorneys fees and other expenses incurred with respect to the valuation of the Shares of any dissenting shareholders) under Section 1.10, (vii) the discharge of any post-Closing liability of the type described in Section 2.4(b), and (viii) the fees and charges of the Escrow Agent. The Escrow Agent Agreement shall each instruct include provisions requiring the Escrow Agent to release) an amount deliver periodic reports, not less often than monthly, in reasonable form and detail, to Peter T. Paul (or any other representative of cash held in the Escrow Fund equal to the Initial Shortfall Amount former shareholders xx Xxxxxxx xxo may be designated by wire transfer of immediately available funds to an account designated in writing by Parent Peter T. Paul), summarizing all deposits to, disbursements and paymentx xxxx, xxx xther activity with respect to the Escrow Agent. Account. Not later than one hundred twenty (ii120) If days after the Shortfall Amount exceeds the amount of the Allocated Escrow Basket (such amount in excess of the Allocated Escrow BasketEffective Time, the “Excess Shortfall Amount”), in Parent’s sole and absolute discretion, either: (1) the Escrow Agent shall promptly release (and deliver the Stockholder Representative and Parent shall each instruct remaining balance of the Escrow Account (subject to provision for the disposition of any Dissenting Shares Account) to the Paying Agent for deposit into the Payment Fund and disposition in accordance with the Paying Agent Agreement and, at the same time, shall deliver to release) both the Allocated Escrow Basket Paying Agent a report reconciling all deposits and the Excess Shortfall Amount withdrawals from the Escrow Fund by wire transfer of immediately available funds Account, with a copy to an account designated in writing by Parent to the Escrow Agent; or (2) the FNB. The Escrow Agent Agreement shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) an amount of cash held include mediation, arbitration or other provisions for resolving, in the Escrow Fund equal to spirit of good faith cooperation, any questions, issues or disputes that may arise among the Allocated Escrow Basket by wire transfer of immediately available funds to an account designated in writing by Parent to the Escrow Agent and the Company Stockholders shall promptly pay to Parent, in accordance with their respective Pro Rata Portions, an aggregate amount of cash equal to the Excess Shortfall Amount; provided, however, that if any Company Stockholder shall fail to so pay its respective Pro Rata Portion of the Excess Shortfall Amount pursuant to and in accordance with this clause (2), Parent may (in its sole and absolute discretion) either commence legal proceedings to specifically enforce the terms of this clause (2) against such Company Stockholder and/or instruct the Escrow Agent to release from the Escrow Fund and deliver to Parent the difference between the Excess Shortfall Amount and the amount of money actually received by Parent from the Company Stockholders pursuant to this clause (2)parties.

Post-Closing Payments. As soon as practicable following the determination of all or any portion of the Shortfall Amount, the following procedures shall apply: (i) To The Merger Consideration, calculated based on (A) the extent that aggregate exercise price of all Company Options and Company Warrants, (B) the Shortfall Amount amount of Closing Cash, (C) the amount of Closing Net Working Capital, (D) the amount of Closing Indebtedness, (E) the amount of Unpaid Transaction Expenses and (F) the Aggregate Exercise Loans Amount, each as deemed final and binding on the parties hereto pursuant to this Section 1.9, is less than or equal referred to herein as the “Final Merger Consideration.” The Per Share Merger Consideration based on the Final Merger Consideration, the “Final Per Share Merger Consideration.” (ii) If the amount of the Allocated Escrow Basket (Final Merger Consideration exceeds the portion amount of the Shortfall Amount up to and including the Allocated Escrow BasketEstimated Merger Consideration (such excess amount, the “Initial Shortfall AmountPositive Adjustment”), then, within three Business Days after the Escrow Agent shall promptly release determination of the Final Merger Consideration pursuant to this Section 1.9, (and the Stockholder Representative and A) Parent shall each instruct the Escrow Agent deposit or shall cause to release) an amount of cash held be deposited in the Escrow Payment Fund equal to held by the Initial Shortfall Amount Paying Agent, by wire transfer of immediately available funds to funds, an account designated amount in writing by Parent cash equal to the Escrow Agent. (ii) If the Shortfall Amount exceeds the amount portion of the Allocated Escrow Basket Positive Adjustment to which the Stockholders are entitled pursuant to Section 1.6(b) and to which the Rollover Participants would have been entitled to pursuant Section 1.6(b) had they not participated in the Rollover Transaction, (such amount in excess of the Allocated Escrow Basket, the “Excess Shortfall Amount”), in Parent’s sole and absolute discretion, either: (1B) the Escrow Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct deposit or shall cause to be deposited with the Escrow Agent to release) both the Allocated Escrow Basket and the Excess Shortfall Amount from the Escrow Fund Surviving Corporation, by wire transfer of immediately available funds to an account designated in writing by Parent to the Escrow Agent; or (2) the Escrow Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) funds, an amount of in cash held in the Escrow Fund equal to the Allocated Escrow Basket portion of the Positive Adjustment to which the Optionholders are entitled pursuant to Section 1.6(c) and to which the Rollover Participants would have been entitled to pursuant Section 1.6(c) had they not participated in the Rollover Transaction, and (C) Parent shall deposit or shall cause to be deposited in the Payment Fund held by the Paying Agent, by wire transfer of immediately available funds funds, an amount in cash equal to an account designated in writing by the portion of the Positive Adjustment to which the Warrantholders are entitled pursuant to Section 1.6(d). (iii) If the amount of the Estimated Merger Consideration exceeds the amount of the Final Merger Consideration (the lesser of such excess amount and the Adjustment Escrow Amount, the “Negative Adjustment”), then, within three Business Days after the determination of the Final Merger Consideration pursuant to this Section 1.9, Parent and the Seller Representative shall provide a joint written instruction to the Escrow Agent to deliver promptly from the Adjustment Escrow Fund to Parent the amount of the Negative Adjustment in immediately available funds by wire transfer to an account or accounts designated by Parent in writing, up to a maximum payment equal to the Adjustment Escrow Amount. It is understood and agreed that the Adjustment Escrow Fund shall be Parent’s, GT Topco’s and Merger Sub’s exclusive and sole source of recovery of the Negative Adjustment. (iv) In the event (i) there is any Securityholder set forth on the Post-Closing Capitalization Table that is not set forth on the Pre-Closing Capitalization Table (“Additional Securityholder”), or (ii) the number of shares of Company Capital Stock, including shares of Company Capital Stock issuable upon exercise of Company Warrants or Company Options, held by a Securityholder as set forth on the Post-Closing Capitalization Table is greater than the number of shares of Company Capital Stock, including shares of Company Capital Stock issuable upon exercise of Company Warrants or Company Options, held by a Securityholder as set forth on the Pre-Closing Capitalization Table (“Additional Securityholder Shares”), then Parent and the Seller Representative shall provide a joint written instruction to the Escrow Agent to deliver promptly from the Adjustment Escrow Fund to the Payment Fund the amount of Final Per Share Merger Consideration for each share of Company Stockholders Capital Stock, including shares of Company Capital Stock issuable upon exercise of Company Warrants or Company Options, held by such Additional Securityholder and for each of the Additional Securityholder Shares. (v) If any funds would remain in the Adjustment Escrow Fund after giving effect to the adjustments described in this Section 1.9(f) (such remaining amount, the “Remaining Adjustment Escrow Fund”), then, within three Business Days after the determination of the Final Merger Consideration pursuant to this Section 1.9, Parent and the Seller Representative shall promptly pay provide a joint written instruction to Parentthe Escrow Agent to (A) deposit or cause to be deposited in the Payment Fund held by the Paying Agent, in accordance with their respective Pro Rata Portionsby wire transfer of immediately available funds, an aggregate amount of in cash equal to the Excess Shortfall Amount; provided, however, that if any Company Stockholder shall fail to so pay its respective Pro Rata Portion portion of the Excess Shortfall Amount Remaining Adjustment Escrow Fund to which the Stockholders are entitled pursuant to Section 1.6(b) and to which the Rollover Participants would have been entitled to pursuant Section 1.6(b) had they not participated in accordance the Rollover Transaction, (B) deposit or cause to be deposited with the Surviving Corporation, by wire transfer of immediately available funds, an amount in cash equal to the portion of the Remaining Adjustment Escrow Fund to which the Optionholders are entitled pursuant to Section 1.6(c) and to which the Rollover Participants would have been entitled to pursuant Section 1.6(c) had they not participated in the Rollover Transaction and (C) deposit or cause to be deposited in the Payment Fund held by the Paying Agent, by wire transfer of immediately available funds, an amount in cash equal to the portion of the Remaining Adjustment Escrow Fund to which the Warrantholders are entitled pursuant to Section 1.6(d). (vi) If any funds remain in the Seller Representative Escrow Fund following the determination of the Final Merger Consideration after taking into account the reasonable and documented fees, costs and expenses incurred by the Seller Representative in performing its duties and exercising its rights under this clause Agreement and the Escrow Agreement (2such remaining amount, the “Remaining Seller Representative Escrow Fund”), then, within three Business Days after the determination of the Final Merger Consideration (or at such other time not more than three months after such determination, as determined by the Seller Representative), Parent may (in its sole and absolute discretion) either commence legal proceedings the Seller Representative shall provide a joint written instruction to specifically enforce the terms of this clause (2) against such Company Stockholder and/or instruct the Escrow Agent to release from (A) deposit or cause to be deposited in the Payment Fund held by the Paying Agent, by wire transfer of immediately available funds, an amount in cash equal to the portion of the Remaining Seller Representative Escrow Fund and deliver to Parent which the difference between the Excess Shortfall Amount and the amount of money actually received by Parent from the Company Stockholders are entitled pursuant to this clause Section 1.6(b) and to which the Rollover Participants would have been entitled to pursuant Section 1.6(b) had they not participated in the Rollover Transaction, (2B) deposit or cause to be deposited with the Surviving Corporation, by wire transfer of immediately available funds, an amount in cash equal to the portion of the Remaining Seller Representative Escrow Fund to which the Optionholders are entitled pursuant to Section 1.6(c) and to which the Rollover Participants would have been entitled to pursuant Section 1.6(c) had they not participated in the Rollover Transaction and (C) deposit or shall cause to be deposited in the Payment Fund held by the Paying Agent, by wire transfer of immediately available funds, an amount in cash equal to the Remaining Seller Representative Escrow Fund to which the Warrantholders are entitled pursuant to Section 1.6(d). (vii) Any payment made under this Section 1.9, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Merger Consideration.

Post-Closing Payments. As soon as practicable following the determination of all or any portion of the Shortfall Amount, the following procedures shall apply: (i) To If the extent that Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.4 is negative (the Shortfall absolute value of such negative amount, the “Post-Closing Deficit”), then the Company Indemnitors shall owe Parent the Post-Closing Deficit. Payment of any Post-Closing Deficit shall come, first, by reducing on a dollar-for-dollar basis the Adjustment Escrow Amount is less than or equal to by the amount of the Allocated Post-Closing Deficit and, to the extent the Adjustment Escrow Basket (Amount is insufficient, by reducing on a dollar-for-dollar basis the portion Indemnity Escrow Amount by the balance of the Shortfall Amount up to Post-Closing Deficit, and including in each such case the Allocated Escrow Basket, the “Initial Shortfall Amount”), the Escrow Agent parties shall promptly release (and the Stockholder Representative and Parent shall each jointly instruct the Escrow Agent to releasepay the Post-Closing Deficit in full to Parent out of the Adjustment Escrow Fund and/or Indemnity Escrow Fund. For avoidance of doubt, (1) an amount reduction and payments out of cash held the Adjustment Escrow Fund and the Indemnity Escrow Fund, together, as aforesaid, shall represent the sole and exclusive remedy and recovery of Parent in respect of any Post-Closing Deficit and (2) any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. If there remains a positive balance to the Adjustment Escrow Amount following the setoff and reduction of the Post-Closing Deficit against such amount, the parties shall jointly instruct the Escrow Fund equal Agent to pay the balance of the Adjustment Escrow Amount to the Initial Shortfall Amount by wire transfer of immediately available funds to an account designated in writing by Parent (1) Payment Agent for further distribution to the Escrow AgentCompany Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Surviving Corporation for further distribution through the Surviving Corporation’s payroll processing system to the Company Indemnitors who were holders of Vested Company Options which were Employee Company Options in accordance with the same procedures set forth in Section 1.4(e)(ii) below. (ii) If the Shortfall Post-Closing Adjustment Amount exceeds the amount of the Allocated Escrow Basket as finally determined pursuant to this Section 1.4 is positive (such amount in excess of the Allocated Escrow Basketamount, the “Excess Shortfall AmountPost-Closing Increase”), in Parent’s sole then Parent shall, no later than five (5) Business Days after the final determination of the Post-Closing Adjustment Amount pursuant to this Section 1.4, pay the Post-Closing Increase and absolute discretioncause Escrow Agent to release the Adjustment Escrow Amount, either: to (1) the Escrow Payment Agent shall promptly release (and the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) both the Allocated Escrow Basket and the Excess Shortfall Amount from the Escrow Fund by wire transfer of immediately available funds to an account designated in writing by Parent for further distribution to the Escrow Agent; or Company Indemnitors who were holders of Company Capital Stock, Vested Company Options which were Non-Employee Company Options and Company Warrants and (2) the Escrow Agent shall promptly release (and Surviving Corporation for further distribution through the Stockholder Representative and Parent shall each instruct the Escrow Agent to release) an amount of cash held in the Escrow Fund equal Surviving Corporations payroll processing system to the Allocated Escrow Basket by wire transfer Company Indemnitors who were holders of immediately available funds to an account designated Vested Company Options which were Employee Company Options, in writing by Parent to the Escrow Agent and the Company Stockholders shall promptly pay to Parenteach case, in accordance with their each Company Indemnitor’s respective Pro Rata Portions, an aggregate amount of cash equal to the Excess Shortfall Amount; provided, however, that if any Company Stockholder shall fail to so pay its respective Pro Rata Portion of the Excess Shortfall Amount pursuant to and in accordance with this clause (2), Parent may (in its sole and absolute discretion) either commence legal proceedings to specifically enforce the terms of this clause (2) against such Company Stockholder and/or instruct the Escrow Agent to release from the Escrow Fund and deliver to Parent the difference between the Excess Shortfall Amount and the amount of money actually received by Parent from the Company Stockholders pursuant to this clause (2)Portion.