Common use of Purchase Price Holdback Clause in Contracts

Purchase Price Holdback. (a) Notwithstanding anything herein to the contrary, at the Effective Time, a portion of the Base Purchase Price equal to $35,000,000 less the deducts set forth in this Agreement shall be paid to the holders of Purchased Equity. The remaining $35,000,000, constituting the initial Purchase Price Holdback Amount, shall not be paid to the holders of Purchased Equity, as required by Section 2.6(b), and shall instead be held back by the Purchaser at Closing and the Purchase Price Holdback Amount less the applicable Escrow Amount shall be paid to the Payment Agent for further distribution to the holders of Purchased Equity on the date that is ninety (90) days following the Closing; provided, however, that if Mxxx Xxxxxxxxxx’x employment with TILT or one of its Affiliates is terminated prior to the end of such ninety (90) day period (a) by TILT other than for Cause or (b) by Mx. Xxxxxxxxxx for “Good Reason”, in each case, the Purchase Price Holdback Amount shall be payable to the Sellers immediately upon notice to or from Mx. Xxxxxxxxxx of his termination of employment with the Company; provided, further, however, that Mxxx Xxxxxxxxxx’x employment with TILT or one of its Affiliates is terminated prior to the end of such ninety (90) day period (a) by TILT for Cause, or (b) by Mx. Xxxxxxxxxx other than for “Good Reason,” in each case, the Purchase Price Holdback Amount shall be forfeited and never paid by Purchaser to the Sellers. The parties acknowledge and agree to the following: (i) Mx. Xxxxxxxxxx’x continued employment with TILT for at least ninety (90) days induced the Sellers into assenting to the Agreement, (ii) in the event TILT terminates Mx. Xxxxxxxxxx’x employment for Cause prior to the end of ninety (90) days following Closing, the Sellers will forfeit $35,000,000, and (iii), due to (i) and (ii), TILT shall only terminate Mx. Xxxxxxxxxx’x employment for Cause in good faith and “Cause” shall be interpreted as strictly as the law will allow in any Proceeding regarding this Agreement. For the avoidance of doubt, the Purchase Price Holdback Amount shall be payable to the Sellers, subject to this Section 2.7, even if Mxxx Xxxxxxxxxx’x employment is terminated or otherwise disrupted due to his death or his inability to perform services to the Company due to physical, emotional or mental illness. (b) If (I) the Purchase Price Holdback Amount becomes payable to the Sellers pursuant to Section 2.7, (II) the Indebtedness and Specified Liabilities of the Company and its Subsidiaries as of the date of this Agreement and the Effective Time is less than $19,412,600 in the aggregate and (III) Purchaser does not pay the Purchase Price Holdback Amount in accordance with this Agreement by the date that is ninety (90) days following the Closing Date, then on the following Business Day, the Purchase Price Holdback Amount will remain payable and (i) will accrue interest until paid (which interest payments must be paid over in cash in arrears to the Paying Agent for disbursement to the Sellers on the first day of each calendar month) (A) from the date that is ninety-one (91) days following the Closing Date through the earlier of the date that is one hundred fifty (150) days following the Closing Date or the date as the full amount owing has been paid at an annual rate of interest equal to fifteen percent (15%), and if necessary (B) from the date that is one hundred fifty-one (151) days following the Closing Date through such date as the full amount owing has been paid at an annual rate of interest equal to twenty-two percent (22%) (all such interest under the foregoing subclauses (A) and (B), the “Liquidated Damages”), and (ii) shall be payable in full on or before the date that is the one year anniversary of the Closing Date. If (I) the Purchase Price Holdback Amount becomes payable to the Sellers pursuant to Section 2.7, (II) the Indebtedness and Specified Liabilities of the Company and its Subsidiaries as of the date of this Agreement and the Effective Time is less than $19,412,600 in the aggregate and (III) Purchaser does not pay the Purchase Price Holdback Amount in accordance with this Agreement by the date that is one hundred fifty (150) days following the Closing Date, then (x) on the following Business Day, the parties shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release from the Escrow Account an amount equal to the amount by which the value of the cash funds and the value of the Consideration Securities remaining in the Escrow Account, including any interest accrued or income otherwise earned thereon and owned by the Sellers, exceed the aggregate dollar amount, as of such date, of Claimed Amounts and Contested Amounts associated with all indemnification claims contained in any Notice of Claim that was submitted on or before the date that is forty-five (45) days following the Closing Date and that have not been finally resolved and paid and (y) the General Survival Date shall be deemed to be amended such that it becomes the date that is forty-five (45) days following the Closing. The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the Sellers’ harm caused by Purchaser’s breach of its obligations under this Section 2.7 would be impossible or very difficult to accurately estimate as of the Closing Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Purchaser’s breach.

Purchase Price Holdback. (a) Notwithstanding anything herein to the contrary, at the Effective Time, a portion The Purchaser shall holdback $2,750,000 of the Base Purchase Price equal to $35,000,000 less the deducts set forth in this Agreement shall be paid to the holders of Purchased Equity. The remaining $35,000,000, constituting the initial Purchase Price Holdback Amount, shall not be paid to the holders of Purchased Equity, as required by Section 2.6(b), and shall instead be held back by the Purchaser at Closing and the Purchase Price (the “Holdback Amount less Amount”) to provide a source for payment of amounts that become due and payable from the applicable Escrow Amount shall be paid Sellers to the Payment Agent for further distribution Purchaser Indemnified Parties pursuant to the holders of Purchased Equity on the date that is ninety (90) days following the Closing; provided, however, that if Mxxx Xxxxxxxxxx’x employment with TILT or one of its Affiliates is terminated prior to the end of such ninety (90) day period (a) by TILT other than for Cause or (b) by Mx. Xxxxxxxxxx for “Good Reason”, in each case, the Purchase Price Holdback Amount shall be payable to the Sellers immediately upon notice to or from Mx. Xxxxxxxxxx of his termination of employment with the Company; provided, further, however, that Mxxx Xxxxxxxxxx’x employment with TILT or one of its Affiliates is terminated prior to the end of such ninety (90) day period (a) by TILT for Cause, or (b) by Mx. Xxxxxxxxxx other than for “Good Reason,” in each case, the Purchase Price Holdback Amount shall be forfeited and never paid by Purchaser to the Sellers. The parties acknowledge and agree to the following: (i) Mx. Xxxxxxxxxx’x continued employment with TILT for at least ninety (90) days induced the Sellers into assenting to the Agreement, (ii) in the event TILT terminates Mx. Xxxxxxxxxx’x employment for Cause prior to the end of ninety (90) days following Closing, the Sellers will forfeit $35,000,000, and (iii), due to (i) and (ii), TILT shall only terminate Mx. Xxxxxxxxxx’x employment for Cause in good faith and “Cause” shall be interpreted as strictly as the law will allow in any Proceeding regarding this Agreement. For the avoidance of doubt, the Purchase Price Holdback Amount shall be payable to the Sellers, subject to this Section 2.7, even if Mxxx Xxxxxxxxxx’x employment is terminated or otherwise disrupted due to his death or his inability to perform services to the Company due to physical, emotional or mental illnessArticle 9 hereof. (b) If (I) the Purchase Price Holdback Amount becomes payable Subject to the provisions of Article 9, any payments required to be made by the Sellers to any of the Purchaser Indemnified Parties pursuant to Section 2.7, (II) the Indebtedness and Specified Liabilities of the Company and its Subsidiaries as of the date this Article 9 of this Agreement and shall first be satisfied from the Effective Time is less than $19,412,600 Holdback Amount. Notwithstanding the foregoing, the Purchaser Indemnified Parties may only recover for indemnifiable Losses described in Section 9.2(b) against the aggregate and (III) Purchaser does not pay the Purchase Price Holdback Amount in accordance with this Agreement by up to an amount equal to such breaching Seller’s Pro-Rata Share of the date that is ninety (90) days following the Closing Date, then on the following Business Day, the Purchase Price Holdback Amount will remain payable and remaining at the time such claim is finally resolved. (ic) will accrue interest until paid (which interest payments must be paid over in cash in arrears to the Paying Agent for disbursement to the Sellers on On the first day of each calendar month) (A) from the date that is ninety-one (91) days following the Closing Date through the earlier of the date that is one hundred fifty (150) days following the Closing Date or the date as the full amount owing has been paid at an annual rate of interest equal to fifteen percent (15%), and if necessary (B) from the date that is one hundred fifty-one (151) days following the Closing Date through such date as the full amount owing has been paid at an annual rate of interest equal to twenty-two percent (22%) (all such interest under the foregoing subclauses (A) and (B), the “Liquidated Damages”), and (ii) shall be payable in full on or before the date that is the one year anniversary of the Closing Date. If (I) , the Purchase Price Holdback Amount becomes payable Purchaser shall pay to the Sellers pursuant to Section 2.7, Seller Representative (II) the Indebtedness and Specified Liabilities on behalf of the Company and its Subsidiaries as of the date of this Agreement and the Effective Time is less than $19,412,600 Sellers) in the aggregate and (III) Purchaser does not pay the Purchase Price Holdback Amount in accordance with this Agreement by the date that is one hundred fifty (150) days following the Closing Date, then (x) on the following Business Day, the parties shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release from the Escrow Account immediately available funds an amount equal to the Holdback Amount, minus (i) the amount of any indemnification claims made by Purchaser under Article 9 which the value of the cash funds have been finally determined to be due and the value of the Consideration Securities remaining in the Escrow Account, including any interest accrued or income otherwise earned thereon and owned owing by the Sellers, exceed and minus (ii) the aggregate dollar amount, as of such dateif any, of Claimed Amounts and Contested Amounts associated with all any pending indemnification claims contained in any Notice of Claim that was submitted on or before the date that is forty-five (45) days following the Closing Date and that made by Purchaser under Article 9 which have not been finally resolved and paid and in accordance with Article 9 hereof (yeach an “Open Claim”). (d) At any time after the General Survival Date shall be deemed to be amended such that it becomes the date that is forty-five (45) days following the Closing. The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the Sellers’ harm caused by Purchaser’s breach of its obligations under this Section 2.7 would be impossible or very difficult to accurately estimate as first anniversary of the Closing Date, and that if any then-remaining Open Claims are withdrawn or resolved by the Liquidated Damages are a reasonable estimate parties pursuant to Article 9, then the Purchaser shall pay to the Seller Representative (on behalf of the anticipated or actual harm that might arise from Purchaser’s breachSellers) in immediately available funds, the then-remaining balance of the Holdback Amount (in excess of the amount of any remaining Open Claims).

Purchase Price Holdback. (a) Notwithstanding anything herein to the contrary, at the Effective Time, a portion of the Base Purchase Price equal to $35,000,000 less the deducts set forth in this Agreement shall be paid to the holders of Purchased Equity. The remaining $35,000,000, constituting the initial Purchase Price Holdback Amount, shall not be paid to the holders of Purchased Equity, as required by Section 2.6(b), and shall instead be held back by the Purchaser at Closing and the Purchase Price Holdback Amount less the applicable Escrow Amount shall be paid to the Payment Agent for further distribution to the holders of Purchased Equity on the date that is ninety (90) days following the Closing; provided, however, that if Mxxx Xxxx Xxxxxxxxxx’x employment with TILT or one of its Affiliates is terminated prior to the end of such ninety (90) day period (a) by TILT other than for Cause or (b) by MxXx. Xxxxxxxxxx for “Good Reason”, in each case, the Purchase Price Holdback Amount shall be payable to the Sellers immediately upon notice to or from MxXx. Xxxxxxxxxx of his termination of employment with the Company; provided, further, however, that Mxxx Xxxx Xxxxxxxxxx’x employment with TILT or one of its Affiliates is terminated prior to the end of such ninety (90) day period (a) by TILT for Cause, or (b) by MxXx. Xxxxxxxxxx other than for “Good Reason,” in each case, the Purchase Price Holdback Amount shall be forfeited and never paid by Purchaser to the Sellers. The parties acknowledge and agree to the following: (i) MxXx. Xxxxxxxxxx’x continued employment with TILT for at least ninety (90) days induced the Sellers into assenting to the Agreement, (ii) in the event TILT terminates MxXx. Xxxxxxxxxx’x employment for Cause prior to the end of ninety (90) days following Closing, the Sellers will forfeit $35,000,000, and (iii), due to (i) and (ii), TILT shall only terminate MxXx. Xxxxxxxxxx’x employment for Cause in good faith and “Cause” shall be interpreted as strictly as the law will allow in any Proceeding regarding this Agreement. For the avoidance of doubt, the Purchase Price Holdback Amount shall be payable to the Sellers, subject to this Section 2.7, even if Mxxx Xxxx Xxxxxxxxxx’x employment is terminated or otherwise disrupted due to his death or his inability to perform services to the Company due to physical, emotional or mental illness. (b) If (I) the Purchase Price Holdback Amount becomes payable to the Sellers pursuant to Section 2.7, (II) the Indebtedness and Specified Liabilities of the Company and its Subsidiaries as of the date of this Agreement and the Effective Time is less than $19,412,600 in the aggregate and (III) Purchaser does not pay the Purchase Price Holdback Amount in accordance with this Agreement by the date that is ninety (90) days following the Closing Date, then on the following Business Day, the Purchase Price Holdback Amount will remain payable and (i) will accrue interest until paid (which interest payments must be paid over in cash in arrears to the Paying Agent for disbursement to the Sellers on the first day of each calendar month) (A) from the date that is ninety-ninety- one (91) days following the Closing Date through the earlier of the date that is one hundred fifty (150) days following the Closing Date or the date as the full amount owing has been paid at an annual rate of interest equal to fifteen percent (15%), and if necessary (B) from the date that is one hundred fifty-one (151) days following the Closing Date through such date as the full amount owing has been paid at an annual rate of interest equal to twenty-two percent (22%) (all such interest under the foregoing subclauses (A) and (B), the “Liquidated Damages”), and (ii) shall be payable in full on or before the date that is the one year anniversary of the Closing Date. If (I) the Purchase Price Holdback Amount becomes payable to the Sellers pursuant to Section 2.7, (II) the Indebtedness and Specified Liabilities of the Company and its Subsidiaries as of the date of this Agreement and the Effective Time is less than $19,412,600 in the aggregate and (III) Purchaser does not pay the Purchase Price Holdback Amount in accordance with this Agreement by the date that is one hundred fifty (150) days following the Closing Date, then (x) on the following Business Day, the parties shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release from the Escrow Account an amount equal to the amount by which the value of the cash funds and the value of the Consideration Securities remaining in the Escrow Account, including any interest accrued or income otherwise earned thereon and owned by the Sellers, exceed the aggregate dollar amount, as of such date, of Claimed Amounts and Contested Amounts associated with all indemnification claims contained in any Notice of Claim that was submitted on or before the date that is forty-five (45) days following the Closing Date and that have not been finally resolved and paid and (y) the General Survival Date shall be deemed to be amended such that it becomes the date that is forty-five (45) days following the Closing. The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the Sellers’ harm caused by Purchaser’s breach of its obligations under this Section 2.7 would be impossible or very difficult to accurately estimate as of the Closing Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Purchaser’s breach.