Common use of Reconciliation Payment Clause in Contracts

Reconciliation Payment. Within five Business Days after Final Net Working Capital and Cash, Final Transaction Expenses, Final Funded Indebtedness and Final Pre-Closing Taxes become final and binding, the following will occur (with the payments in this Section 2.4(f) being made without interest by wire transfer of immediately available funds, and with any amount paid or disbursed to the Sellers under the following being allocated among the applicable Sellers as contemplated in Article 1). (1) If the Estimated Cash Merger Consideration (as determined at Closing), minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the Estimated Funded Indebtedness, is less than the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation is less than such cash portion of the Merger Consideration being the “Upward Reconciliation Amount”), then the following will occur: (A) Buyer will pay, or cause to be paid, to the Paying/Escrow Agent pursuant to the Escrow Agreement an amount equal to the Upward Reconciliation Amount, and Buyer and the Sellers’ Representative will instruct the Paying/Escrow Agent to disburse such amounts to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution); and (B) Buyer and the Sellers’ Representative will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution). (2) If the Estimated Cash Merger Consideration (as determined at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation exceeds such cash portion of the Merger Consideration being the “Downward Reconciliation Amount”), then the following will occur: (A) the Parties will cause a disbursement of all or a portion of the Post-Closing Adjustment Escrow Amount to Buyer or the Surviving Corporation (as Buyer determines) to the extent necessary to pay the Downward Reconciliation Amount, provided that the sole source of the Downward Reconciliation Amount will be from the Post-Closing Adjustment Escrow Amount and Buyer will have no other recourse if the Downward Reconciliation Amount exceeds the Post-Closing Adjustment Escrow Amount; and (B) if any portion of the Post-Closing Adjustment Escrow Amount is not disbursed under clause (f)(2)(A) above, then Buyer and the Sellers’ Representative will cause an amount equal to such undisbursed portion of the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution). (3) If the Estimated Cash Merger Consideration (as determined at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness equals the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)), then Buyer and the Sellers’ Representative will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution).

Reconciliation Payment. Within five Business Days after Final Net Working Capital and Cash, Final Transaction Expenses, Expenses and Final Funded Indebtedness and Final Pre-Closing Taxes become final and binding, the following will occur (with the payments in this Section 2.4(f) being made without interest by wire transfer of immediately available funds, and with any amount paid or disbursed to the Sellers Paying Agent under the following being allocated among the applicable Sellers Closing Payment Recipients as contemplated in Article 1). (1) If the sum of (x) Estimated Cash Merger Consideration (as determined at Closing), minus ) plus (xy) the amount, if any, by which difference of the amount of Transaction Expenses included in the Final Transaction Expenses exceeds minus the Estimated Transaction Expenses minus (ywhich difference may be positive or negative) and plus (z) the amount, if any, by which difference of the amount of the Funded Indebtedness included in the Final Funded Indebtedness exceeds minus the Estimated Funded IndebtednessIndebtedness (which difference may be positive of negative), is less than the cash portion of the Merger Transaction Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation sum is less than such cash portion of the Merger Transaction Consideration being the “Upward Reconciliation Amount”), then the following will occur: (A) Buyer will pay, or cause to be paid, to the Paying/Escrow Paying Agent pursuant for further distribution to the Escrow Agreement Closing Payment Recipients in accordance with Section 1.3, an amount equal to the Upward Reconciliation Amount, and Buyer and the Sellers’ Representative will instruct the Paying/Escrow Agent to disburse such amounts to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution); and (B) Buyer and the Sellers’ Representative Parties will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to under the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal to the Paying Agent for further distribution to the Closing Payment Recipients in order to receive such distribution)accordance with Section 1.3. (2) If the sum of (x) Estimated Cash Merger Consideration (as determined at Closing) minus plus (xy) the amount, if any, by which difference of the amount of Transaction Expenses included in the Final Transaction Expenses exceeds minus the Estimated Transaction Expenses minus (ywhich difference may be positive or negative) and plus (z) the amount, if any, by which difference of the amount of the Funded Indebtedness included in the Final Funded Indebtedness minus the Estimated Funded Indebtedness (which difference may be positive of negative), exceeds the cash portion of the Merger Transaction Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation sum exceeds such cash portion of the Merger Transaction Consideration being the “Downward Reconciliation Amount”), then the following will occur: (A) (i) the Parties will cause a disbursement of all or a portion of the Post-Closing Adjustment Escrow Amount to Buyer or the Surviving Corporation (as Buyer determines) to the extent necessary to pay the Downward Reconciliation Amount, provided that the sole source of the Downward Reconciliation Amount will be from the Post-Closing Adjustment Escrow Amount and Buyer will have no other recourse if the Downward Reconciliation Amount exceeds the Post-Closing Adjustment Escrow Amount; and (B) if any portion of the Post-Closing Adjustment Escrow Amount is not disbursed under clause (f)(2)(A) above, then Buyer and the Sellers’ Representative Parties will cause an amount equal to such undisbursed portion of the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to under the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal to the Paying Agent for further distribution to the Closing Payment Recipients in order to receive such distribution)accordance with Section 1.3. (3) If the sum of (x) Estimated Cash Merger Consideration (as determined at Closing) minus plus (xy) the amount, if any, by which difference of the amount of Transaction Expenses included in the Final Transaction Expenses exceeds minus the Estimated Transaction Expenses minus (ywhich difference may be positive or negative), and plus (z) the amount, if any, by which difference of the amount of the Funded Indebtedness included in the Final Funded Indebtedness minus the Estimated Funded Indebtedness (which difference may be positive of negative), equals the cash portion of the Merger Transaction Consideration (as adjusted, if at all, under Section 2.4(e)), then Buyer and the Sellers’ Representative Parties will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to under the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal to Paying Agent for further distribution to the Closing Payment Recipients in order to receive such distribution)accordance with Section 1.3.

Reconciliation Payment. Within five Business Days after Final Net Working Capital and Capital, Final Closing Cash, Final Transaction Expenses, Final Funded Closing Indebtedness and Final Pre-Closing Taxes become Transaction Expenses becomes final and bindingbinding on the Parties, the following will occur (with the payments in this Section 2.4(f) below being made without interest by wire transfer of immediately available funds, and with without interest (other than any amount paid or disbursed (if any) interest to the Sellers which a Party may be entitled under the following being allocated among the applicable Sellers as contemplated in Article 1Escrow Agreement (if applicable).)): (1) If if the Estimated Cash Merger Consideration Base Purchase Price (as determined in the amount used at Closing), minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the Estimated Funded Indebtedness, is less than the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation is less than such cash portion of the Merger Consideration being the “Upward Reconciliation Amount”)Final Base Purchase Price, then the following will occur: (A) Buyer will paypay to Seller, or cause to be paidin the aggregate, to the Paying/Escrow Agent amount of such difference pursuant to the Escrow Agreement an amount equal to wire transfer instructions set forth in the Upward Reconciliation AmountInstruction Schedule (or, as Seller otherwise directs) and Buyer and the Sellers’ Representative will instruct the Paying/Escrow Agent to disburse such amounts to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution); and (B) Buyer and the Sellers’ Representative will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution). (2) If the Estimated Cash Merger Consideration (as determined at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation exceeds such cash portion of the Merger Consideration being the “Downward Reconciliation Amount”), then the following will occur: (A) the Parties will cause a all of the amounts in the Adjustment Escrow Account to be disbursed to Seller; (2) if the Estimated Base Purchase Price (in the amount used at Closing) exceeds the Final Base Purchase Price, then the Parties will cause disbursement of all or a portion of the Post-Closing amounts in the Adjustment Escrow Amount Account to Buyer or the Surviving Corporation (as Buyer determines) Buyer, to the extent necessary to pay the Downward Reconciliation Amountamount of such excess, provided and the Parties will cause disbursement of any (if any) balance of the amounts in the Adjustment Escrow Account remaining thereafter to Seller; Buyer’s only recourse on account of the Estimated Base Purchase Price (in the amount used at Closing) exceeding the Final Base Purchase Price is to the amounts in the Adjustment Escrow Account held by the Escrow Agent and Seller will not be obligated to pay to Buyer any amount (other than indirectly by release of the amounts in the Adjustment Escrow Account to Buyer) to the extent that the sole source amounts in the Adjustment Escrow Account are insufficient to pay to Buyer the amount by which the Estimated Base Purchase Price (in the amount used at Closing) exceeds the Final Base Purchase Price; or (3) if the Estimated Base Purchase Price (in the amount used at Closing) equals the Final Base Purchase Price, then the Parties will cause all of the Downward Reconciliation Amount will be from amounts in the Post-Closing Adjustment Escrow Amount and Buyer will have no other recourse if the Downward Reconciliation Amount exceeds the Post-Closing Adjustment Escrow Amount; and (B) if any portion of the Post-Closing Adjustment Escrow Amount is not disbursed under clause (f)(2)(A) above, then Buyer and the Sellers’ Representative will cause an amount equal to such undisbursed portion of the Post-Closing Adjustment Escrow Amount Account to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution)Seller. (3) If the Estimated Cash Merger Consideration (as determined at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness equals the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)), then Buyer and the Sellers’ Representative will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution).

Reconciliation Payment. Within five Business Days after Final Net Working Capital and Cash, Final Transaction Expenses, Final Funded Indebtedness and Final Pre-Closing Taxes become the determination of Merger Consideration becomes final and binding, the following payments will occur (occur, with the payments in this Section 2.4(f) being made without interest by wire transfer of immediately available funds, and with any . Any amount paid or disbursed to the Sellers Paying Agent under the following being allocated among sections shall be further distributed to the applicable Sellers as contemplated according to their respective Pro Rata Portions in Article 1)accordance with the Paying Agent Agreement. (1) If the Estimated Cash Merger Consideration (as determined paid at Closing), minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the Estimated Funded Indebtedness, Closing is less than the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which of such calculation is less than such cash portion of the Merger Consideration difference being the “Upward Reconciliation AmountMerger Consideration Adjustment”), then the following will occur: (A) Buyer will pay, or cause to be paid, to the Paying/Escrow Paying Agent pursuant to the Escrow Agreement an amount equal to the Upward Reconciliation Amount, and Buyer and the Sellers’ Representative will instruct the Paying/Escrow Agent to disburse such amounts to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution)Merger Consideration Adjustment; and (B) Buyer and the Sellers’ Representative Parties will cause an amount equal to the Post-Closing Adjustment Reconciliation Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to under the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution)the Paying Agent. (2) If the Estimated Cash Merger Consideration (as determined paid at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses Closing exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which of such calculation exceeds such cash portion of the Merger Consideration difference being the “Downward Reconciliation AmountMerger Consideration Adjustment”), then the following will occur: (A) (i) the Parties will cause a disbursement of all or a portion of the Post-Closing Adjustment Reconciliation Escrow Amount to Buyer or the Surviving Corporation (as Buyer determines) to the extent necessary to pay the Downward Reconciliation Amount, provided that the sole source full amount of the Downward Reconciliation Amount Merger Consideration Adjustment; and (ii) if the amount so disbursed is insufficient to pay the full amount of the Downward Merger Consideration Adjustment, then the Parties will be from cause a disbursement of all or a portion of the Post-Closing Adjustment Indemnification Escrow Amount and to Buyer will have no other recourse if or the Surviving Corporation (as Buyer determines) to the extent necessary to pay the full amount of the Downward Reconciliation Amount exceeds the Post-Closing Adjustment Escrow AmountMerger Consideration Adjustment; and (B) if any portion of the Post-Closing Adjustment Reconciliation Escrow Amount is not disbursed under clause (f)(2)(A) above, then Buyer and the Sellers’ Representative Parties will cause an amount equal to such undisbursed portion of the Post-Closing Adjustment Reconciliation Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to under the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution)the Paying Agent. (3) If the Estimated Cash Merger Consideration (as determined paid at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness Closing equals the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e))Consideration, then Buyer and the Sellers’ Representative Parties will cause an amount equal to the Post-Closing Adjustment Reconciliation Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to under the Escrow Agreement (provided that each Seller must have theretofore delivered histo the Paying Agent. For the avoidance of doubt, her or its Letter amounts shall be distributed under this Section 2.4(f) to the Paying Agent in respect of Transmittal any Dissenting Shares, but such amounts shall not be distributed to Dissenting Stockholders unless and until the conditions set forth in order to receive such distribution)Section 1.7 are satisfied.

Reconciliation Payment. Within five Business Days after Final Net Working Capital and Capital, Final Closing Cash, Final Closing Indebtedness, Final Seller Transaction Expenses, Final Funded Indebtedness and Final Pre-Closing Taxes become Payable becomes final and bindingbinding on the Parties, the following will occur (with the payments in this Section 2.4(f) below being made without interest by wire transfer of immediately available funds, and with any amount paid or disbursed to the Sellers under the following being allocated among the applicable Sellers as contemplated in Article 1).without interest): (1) If if the Estimated Cash Merger Consideration (as determined at Closing), minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the Estimated Funded Indebtedness, is less than the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation is less than such cash portion of the Merger Consideration being the “Upward Reconciliation Amount”)Final Cash Consideration, then the following will occur: (A) Buyer will pay, or cause pay to be paid, to Sellers in accordance with their Pro Rata Share the Paying/Escrow Agent pursuant to the Escrow Agreement an amount equal to the Upward Reconciliation Amount, and Buyer and the Sellers’ Representative will instruct the Paying/Escrow Agent to disburse such amounts to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution); and difference and (B) Buyer and the Sellers’ Representative Parties will cause an amount equal to all of the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation in accordance with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution).their Pro Rata Shares; (2) If if the Estimated Cash Merger Consideration equals the Final Cash Consideration, then the Parties will cause all of the Adjustment Escrow Amount to be disbursed to Sellers in accordance with their Pro Rata Shares; or (as determined at Closing3) minus (x) if the amountEstimated Cash Consideration exceeds the Final Cash Consideration, if any, by which then Sellers will pay to Buyer the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amountsuch excess, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness exceeds the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)) (with the amount by which such calculation exceeds such cash portion of the Merger Consideration being the “Downward Reconciliation Amount”), then the following will occur: follows: (A) the Parties will cause a disbursement of all or a portion of the Post-Closing Adjustment Escrow Amount to Buyer or the Surviving Corporation (as Buyer determines) Buyer, to the extent necessary to pay the Downward Reconciliation Amountamount of such excess, provided that and the sole source Parties will cause disbursement of any (if any) balance of the Downward Reconciliation Amount will be from the Post-Closing Adjustment Escrow Amount remaining thereafter to Sellers in accordance with their Pro Rata Shares; and Buyer will have no other recourse if the Downward Reconciliation Amount exceeds the Post-Closing Adjustment Escrow Amount; and (B) if any portion the amount disbursed to Buyer under such clause (f)(3)(A) is insufficient to pay to Buyer the full amount of such excess, then each Seller will pay its Pro Rata Share of the Post-Closing Adjustment Escrow Amount is not disbursed under clause (f)(2)(A) above, then Buyer and the Sellers’ Representative will cause an remaining amount equal so owed to such undisbursed portion of the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution)Buyer. (3) If the Estimated Cash Merger Consideration (as determined at Closing) minus (x) the amount, if any, by which the amount of Transaction Expenses included in the Final Transaction Expenses exceeds the Estimated Transaction Expenses minus (y) the amount, if any, by which the amount of Funded Indebtedness included in the Final Funded Indebtedness equals the cash portion of the Merger Consideration (as adjusted, if at all, under Section 2.4(e)), then Buyer and the Sellers’ Representative will cause an amount equal to the Post-Closing Adjustment Escrow Amount to be disbursed to the Sellers (or to the Surviving Corporation with respect to the portion of such amount payable to the Optionee, solely in his capacity as Optionee) pursuant to the Escrow Agreement (provided that each Seller must have theretofore delivered his, her or its Letter of Transmittal in order to receive such distribution).