Transaction Consideration. In full consideration of the sale, assignment and transfer of the Purchased Assets and the assumption of the Assumed Liabilities and the execution and delivery by the parties hereto of this Agreement and the other Transaction Documents, as defined below, made in connection with the Transaction, the purchase price for the Purchased Assets shall be such number of shares of Parent Common Stock as is equal to the quotient, rounded to the nearest whole share (such rounded number of shares of Parent Common Stock, the “Parent Stock Amount”), obtained by dividing (i) the difference between (A) $49,000,000 (the “Purchase Consideration”) and (B) the amounts set forth on Schedule 2.6, all of which shall be paid by Buyer at the Closing (such difference, the “Adjusted Purchase Consideration”), divided by (ii) the Parent Stock Price. At the Closing, the Company shall deliver an updated Schedule 2.6 to the extent the amounts required to be set forth on Schedule 2.6 have changed since the date hereof. At the Closing, Buyer shall deliver or cause to be delivered to the Escrow Agent (as defined below) out of the Parent Stock Amount 1,285,715 shares of Parent Common Stock (the “Escrow Amount”), payable into the account designated therefor in the Escrow Agreement (as defined below). The Escrow Amount shall be held by the Escrow Agent in a separate account (the “Escrow Fund”) solely for purposes of the payment to Buyer in satisfaction of any indemnification or other claims of any Buyer Indemnified Party required by Article VIII. The Escrow Fund shall be governed by the terms of an escrow agreement to be entered into by and among Buyer, the Securityholders’ Representative and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit D (the “Escrow Agreement”). The Parent Stock Amount, less the Escrow Amount, shall be payable by Buyer to the Company on the Closing Date, by delivery of one or more stock certificates evidencing such shares of Parent Common Stock, or by delivery of such shares of Parent Common Stock in book entry form to be held as a book position in the name of the Company. The Sellers and the Stockholders shall not be entitled to receive any portion of the Escrow Amount unless and until it is distributed in accordance with the terms of the Escrow Agreement. Notwithstanding anything to the contrary herein, the parties to this Agreement acknowledge and agree that the shares of Parent Common Stock issuable in connection with the Transaction shall be issued by Parent to the Sellers in compliance with the Securities Act and applicable Laws, as set forth in Section 2.9.
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Samples: Asset Purchase Agreement, Asset Purchase Agreement (Brightcove Inc)
Transaction Consideration. In full (a) The aggregate consideration (such amount, the “Transaction Consideration”) payable by Buyer to Seller (or to Seller Stockholders pursuant to disbursements by Seller Stockholder Representative from the Seller Stockholder Representative Expense Fund pursuant to Section 2.11(d)) pursuant to the terms of this Agreement is an amount equal to (i) the Closing Transaction Consideration, plus (ii) that portion of the saleEscrow Funds, assignment and transfer of if any, that Seller becomes entitled to receive pursuant to the Purchased Assets and the assumption of the Assumed Liabilities and the execution and delivery by the parties hereto terms of this Agreement and the other Transaction DocumentsEscrow Agreement, as defined belowplus (iii) that portion of the Seller Stockholder Representative Expense Fund, made in connection with the Transactionif any, the purchase price for the Purchased Assets shall be such number of shares of Parent Common Stock as that is equal distributed by Seller Stockholder Representative to the quotient, rounded Seller Stockholders pursuant to the nearest whole share (such rounded number of shares of Parent Common Stock, the “Parent Stock Amount”Section US-DOCS\131312541.20 2.11(d), obtained by dividing plus (iiv) the difference between Post-Closing Adjustment, if any positive Post-Closing Adjustment is determined pursuant to Section 2.9(b).
(Ab) $49,000,000 (the “Purchase Consideration”) and (B) the amounts set forth on Schedule 2.6, all of which shall be paid by Buyer at the Closing (such difference, the “Adjusted Purchase Consideration”), divided by (ii) the Parent Stock Price. At the Closing, the Company shall deliver an updated Schedule 2.6 to the extent the amounts required to be set forth on Schedule 2.6 have changed since the date hereof. At the Closing, Buyer shall deliver or cause to be delivered to the Escrow Agent (as defined below) out of the Parent Stock Amount 1,285,715 shares of Parent Common Stock (the “Escrow Amount”), payable into the account designated therefor in the Escrow Agreement (as defined below). The Escrow Amount shall be held by the Escrow Agent in a separate account (the “Escrow Fund”) solely for purposes of the payment to Buyer in satisfaction of any indemnification or other claims of any Buyer Indemnified Party required by Article VIII. The Escrow Fund shall be governed by the terms of an escrow agreement to be entered into by and among Buyer, the Securityholders’ Representative and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit D (the “Escrow Agreement”). The Parent Stock Amount, less the Escrow Amount, shall be payable by Buyer to the Company on the Closing Date, by delivery of one or more stock certificates evidencing such shares of Parent Common Stock, or by delivery of such shares of Parent Common Stock in book entry form to be held as a book position in the name of the Company. The Sellers Note and the Stockholders shall not be entitled to receive any portion of the Escrow Amount unless and until it is distributed make payments in accordance with Section 2.5(b) and the terms Consideration Spreadsheet in an aggregate amount equal to the “Estimated Transaction Consideration” (less the Closing Seller Option Consideration, the Closing Seller SARs Consideration and the Closing Seller Warrant Consideration, to the extent paid by Seller prior to Closing pursuant to Sections 2.3(b), (c) and (d)). For purposes hereof, the “Estimated Transaction Consideration” is equal to the sum of the Escrow Agreement. Notwithstanding anything to following:
(i) the contrary hereinPurchase Price; plus
(ii) the Estimated Closing Cash; minus
(iii) the Estimated Closing Indebtedness; plus
(iv) the amount, if any, by which the parties to this Agreement acknowledge and agree that Estimated Closing Net Working Capital exceeds the shares of Parent Common Stock issuable in connection with Target Net Working Capital; minus
(v) the amount, if any, by which the Target Net Working Capital is greater than the Estimated Closing Net Working Capital; minus
(vi) the Estimated Closing Transaction shall be issued by Parent to Expenses, minus
(vii) the Sellers in compliance with the Securities Act and applicable Laws, as set forth in Section 2.9Estimated Tax Liability Amount.
Appears in 1 contract
Transaction Consideration. In full consideration of the sale, assignment and transfer of the Purchased Assets and the assumption of the Assumed Liabilities and the execution and delivery by the parties hereto of this Agreement and the other (a) Estimated Transaction Documents, as defined below, made in connection with the Transaction, the purchase price for the Purchased Assets shall be such number of shares of Parent Common Stock as is equal Consideration. No later than three (3) Business Days prior to the quotient, rounded to the nearest whole share (such rounded number of shares of Parent Common Stock, the “Parent Stock Amount”), obtained by dividing (i) the difference between (A) $49,000,000 (the “Purchase Consideration”) and (B) the amounts set forth on Schedule 2.6, all of which shall be paid by Buyer at the Closing (such difference, the “Adjusted Purchase Consideration”), divided by (ii) the Parent Stock Price. At the Closing, the Company shall deliver an updated Schedule 2.6 to Purchaser a written statement (the “Closing Statement”) setting forth its good faith estimate of the Transaction Consideration (the “Estimated Transaction Consideration”) in respect of which the Company shall (A) use the actual Enterprise Value and (B) estimate in good faith (1) the amount of Closing Date Funded Indebtedness, (2) the amount of Unpaid Seller Expenses, (3) the amount of Cash and Cash Equivalents, and (4) the Net Working Capital Adjustment, together with reasonably detailed supporting documentation and information (including a reasonably detailed calculation of Accrued Income Tax Liabilities). To the extent reasonably requested by Purchaser, the Company will make available to Purchaser and its auditors and advisors all records and work papers used in preparing the Closing Statement; provided that any information provided pursuant hereto shall be subject to the extent confidentiality and non-use obligations of Section 6.3. The Company shall review any comments reasonably proposed by Purchaser with respect to the amounts required Closing Statement setting forth the Estimated Transaction Consideration, and will consider, in good faith, any changes proposed by Purchaser or its representatives in good faith; provided, however, that if, after such good faith consideration, the Company does not agree with respect to be any such comments or changes, subject to Section 2.3(c), the estimates set forth on Schedule 2.6 have changed since in the date hereofClosing Statement delivered by the Company in accordance with this Section 2.3(a) will be utilized for purposes of calculating the Estimated Transaction Consideration, and in no event will Purchaser’s consent or approval to the estimates set forth in the Closing Statement be deemed to condition or delay the Closing. At the Closing:
(i) Purchaser shall, Buyer for administrative convenience on behalf of the Sellers, deposit, or shall deliver or cause to be delivered to the Escrow Agent deposited, Six Million Dollars (as defined below$6,000,000) out of the Parent Stock Amount 1,285,715 shares of Parent Common Stock (such amount, the “Adjustment Escrow Amount”), payable ) into the account designated therefor in the Escrow Agreement (as defined below). The Escrow Amount shall be held by the Escrow Agent in a separate an escrow account (the “Adjustment Escrow FundAccount”) solely for purposes of the payment to Buyer in satisfaction of any indemnification or other claims of any Buyer Indemnified Party required by Article VIII. The Escrow Fund ), which shall be governed by the terms of established pursuant to an escrow agreement to be entered into by and among Buyer, the Securityholders’ Representative and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit D (the “Escrow Agreement”). The Parent Stock Amount, less which Escrow Agreement shall be (A) entered into on the Closing Date among Purchaser, Midco Holdings and Citibank, National Association (the “Escrow Agent”), and (B) substantially in the form of Exhibit A attached hereto; and
(ii) Purchaser shall pay, or shall cause to be paid, to Midco Holdings an amount equal to the Estimated Transaction Consideration (as reduced pursuant to the proviso to this Section 2.3(a)(ii), the “Midco Holdings Closing Payment”) to an account designated by Midco Holdings in the Flow of Funds as consideration for the Company Acquisition; provided, that, notwithstanding the foregoing, Purchaser shall reduce, or cause to be reduced, the Midco Holdings Closing Payment by an amount equal to the Adjustment Escrow Amount and the parties hereto acknowledge and agree that Midco Holdings shall be deemed to have received such amount at the Closing as part of the Midco Holdings Closing Payment and immediately thereupon contributed such amounts to the Escrow AmountAgent. For administrative convenience, Midco Holdings hereby directs Purchaser to pay the Midco Holdings Closing Payment to SRS Acquiom, acting as paying agent on behalf of Midco Holdings. Wire instructions for SRS Acquiom will be included in the Flow of Funds. In addition, at the Closing, Purchaser shall pay, or shall cause to be payable paid, in cash by Buyer wire transfer of immediately available funds, on behalf of the Sellers and the Group Companies, (I) the entire amount of the Closing Date Funded Indebtedness of the type referred to in clauses (i) and (ii) of the definition of Funded Indebtedness (if any) in the amounts and pursuant to wire instructions set forth in the applicable payoff letters (including with respect to the Company on Existing Credit Agreement (the “Company Existing Credit Agreement Payoff Letter”) and the Company Existing NPA (the “Company Existing NPA Payoff Letter”)), each of which shall be consistent with the requirements of Section 6.24 and shall otherwise be in form and substance reasonably satisfactory to Purchaser and the Debt Financing Sources, and (II) the Unpaid Seller Expenses in the amounts set forth in the Closing Statement pursuant to wire instructions provided to Purchaser by the Sellers prior to the Closing in the Flow of Funds. At least three (3) Business Days prior to the Closing Date, by delivery the Sellers shall provide Purchaser with a flow of one or more stock certificates evidencing such shares funds (the “Flow of Parent Common Stock, or by delivery of such shares of Parent Common Stock in book entry form Funds”) setting forth the amounts to be held as a book position in the name of the Company. The Sellers and the Stockholders shall not be entitled to receive any portion of the Escrow Amount unless and until it is distributed in accordance with the terms of the Escrow Agreement. Notwithstanding anything to the contrary herein, the parties paid pursuant to this Agreement acknowledge and agree that the shares of Parent Common Stock issuable in connection Section 2.3(a) along with the Transaction shall be issued by Parent to the Sellers in compliance with the Securities Act and applicable Laws, as set forth in Section 2.9wire instructions therefor.
Appears in 1 contract
Transaction Consideration. In full consideration of the sale, assignment and transfer of the Purchased Assets and the assumption of the Assumed Liabilities and the execution and delivery by the parties hereto of this Agreement and the other Transaction Documents, as defined below, made in connection with the Transaction, the purchase price for the Purchased Assets shall be such number of shares of Parent Common Stock as is equal to the quotient, rounded to the nearest whole share (such rounded number of shares of Parent Common Stock, the “Parent Stock Amount”), obtained by dividing (i) the difference between (A) $49,000,000 Transactions contemplated hereunder (the “Purchase Consideration”) and (B) the amounts set forth on Schedule 2.6, all of which shall be paid by Buyer at the Closing (such difference, the “Adjusted Purchase Transaction Consideration”), divided by Buyer shall:
(i) pay in respect of Inventory, other than Purchased Consignment Goods, an all cash amount (such amount, as the same may be adjusted after the Closing in accordance with this Agreement, the “Cash Payment”) to Sellers in the aggregate amount equal to the sum of (i) sixty-three (63%) percent of the aggregate Cost Value of the Inventory as of the Closing Date (other than Layaway Inventory) and (ii) sixty-three (63%) percent of the Parent Stock Price. At aggregate Cost Value of Layaway Inventory as of the ClosingClosing Date less the amount of Layaway Deposits, payable as follows:
(A) On the Company shall deliver an updated Schedule 2.6 to the extent the amounts required to be set forth on Schedule 2.6 have changed since the date hereof. At the ClosingClosing Date, Buyer shall (i) deliver or cause to be delivered to the Escrow Agent Sellers an aggregate of sixty-seven percent (as defined below67%) out of the Parent Stock Amount 1,285,715 shares Cash Payment less 50% of Parent Common Stock the fees and expenses of the Inventory Taking Service (the “Escrow AmountInitial Cash Payment”), payable into (ii) deliver to Seller a Letter of Credit pursuant to Section 2(g)(i)(C), and (iii) shall deliver to Sellers an additional amount in cash equal to $40,000 as reimbursement for certain expenses incurred in connection with planned closing sales. For the account designated therefor in the Escrow Agreement (as defined below). The Escrow Amount shall be held by the Escrow Agent in a separate account (the “Escrow Fund”) solely for purposes of determining the payment to Buyer in satisfaction amount of any indemnification or other claims of any Buyer Indemnified Party required by Article VIII. The Escrow Fund shall be governed by the terms of an escrow agreement to be entered into by and among Buyer, the Securityholders’ Representative and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit D (the “Escrow Agreement”). The Parent Stock Amount, less the Escrow Amount, shall be payable by Buyer to the Company Cash Payment on the Closing Date, by delivery the Cost Value of one or more stock certificates evidencing such shares the Inventory as of Parent Common Stock, or by delivery the Closing Date shall be calculated based upon the Sellers’ Cost Value of such shares Inventory (other than Purchased Consignment Goods), provided, that the final amount of Parent Common Stock in book entry form to the Cash Payment shall be held as a book position determined following the Final Inventory Reconciliation.
(B) Following the Closing and after completion and verification of the Inventory Taking in the name Acquired Stores (the “Final Inventory Reconciliation”), Buyer and Sellers shall determine the amount of the Company. The Sellers Cash Payment after accounting for the Final Inventory Reconciliation and the Stockholders shall not be entitled any adjustments provided for in this Section 2(i).
(C) To secure its obligations to receive any portion tender payment of the Escrow Amount unless and until it is distributed Remaining Cash Payment, Buyer shall deliver to Sellers an irrevocable standby letter of credit in accordance with an original face amount equal to Remaining Cash Payment, naming Sellers (or their designee) as beneficiary (substantially in the terms form of the Escrow Agreement. Notwithstanding anything to the contrary hereinExhibit A, the parties to this Agreement acknowledge and agree that the shares “Letter of Parent Common Stock issuable in connection with the Transaction Credit”), which shall be issued by Parent a bank selected by Buyer and reasonably acceptable to Sellers, and shall contain terms, provisions and conditions mutually acceptable to Buyer and Sellers. In the event that Buyer fails to timely pay the undisputed portion of the Remaining Cash Payment within two (2) business days after the Final Inventory Reconciliation, Sellers shall be entitled to draw on the Letter of Credit to fund such amount or obligation following five (5) days’ written notice to Buyer of Sellers’ intention to do so (which notice shall not be required if Buyer shall be a debtor under title 11, United States Code). The Letter of Credit shall expire on the date sixty (60) days after the Closing Date, provided, however, in the event that Buyer shall have paid to Sellers the Remaining Cash Payment (net of any adjustments as provided for herein), Sellers agree to surrender the original Letter of Credit to the issuer thereof together with written notification that the Letter of Credit may be terminated.
(D) To the extent that at the expiration of the Inventory Dispute Period the Final Inventory Reconciliation shows that the amounts paid to Sellers in compliance with respect of the Securities Act Cash Payment exceeded the amount due Sellers in respect of the Cash Payment, then Sellers shall cause any overpayment to be immediately refunded to Buyer.
(ii) subject to the consent required pursuant to Section 2(c), pay in respect of Purchased Consignment Goods, after completion and applicable Lawsverification of the Inventory Taking of Purchased Consignment Goods, as set forth an all cash amount to Sellers in Section 2.9an amount equal to such amount agreed to among the Buyer, Sellers and the respective vendors of such Purchased Consignment Goods. Except for Buyer’s obligation to remit such payment, it is expressly understood that Buyer shall have no liability for segregating, securing, inventorying or any other handling of the Purchased Consignment Goods, or the proceeds thereof, and Seller hereby indemnifies Buyer for all claims and causes of action arising therefrom (including, without limitation, reasonably attorney’s fees of Buyer).
Appears in 1 contract
Samples: Asset Purchase Agreement (Whitehall Jewelers Holdings, Inc.)
