Common use of Aggregate Consideration Clause in Contracts

Aggregate Consideration. The aggregate consideration for all of the Capital Stock of the Company shall be as follows (subject to adjustment as set forth herein) (the “Merger Consideration”): (i) $20,000,000.00 payable in cash (the “Cash Consideration”), of which (a) $12,000,000.00 shall be paid at the Closing (the “Closing Cash Consideration”), (b) $1,000,000.00 shall be paid on each quarterly anniversary of the Closing Date for the first four quarters following the Closing (the “Quarterly Cash Consideration”) and (c) $4,000,000.00 shall be paid on the fifteen-month anniversary of the Closing Date (the “15-Month Cash Consideration” and together with the Quarterly Cash Consideration, the “Post-Closing Cash Consideration”); (ii) an amount of simple interest on the unpaid Post-Closing Cash Consideration from the Closing Date until the fifteen-month anniversary of the Closing Date, at a rate of six percent (6%) per annum, such interest payable in a lump sum on the fifteen-month anniversary of the Closing Date (the “Interest Payment”); and (iii) 1,794,455 shares of Buyer Common Stock (the “Equity Consideration”), of which (x) 717,782 shares of Buyer Common Stock shall be issued at the Closing (the “Non-Restricted Equity Consideration”), (y) 969,005 shares of Buyer Common Stock shall be issued at the Closing but subject to forfeiture as provided in Section 3.4(c) (the “NuCel Equity Consideration”) and (z) 107,668 shares of Buyer Common Stock shall be issued at the Closing but subject to forfeiture as provided in Section 3.4(d) (the “▇▇▇▇ Equity Consideration” and together with the NuCel Equity Consideration, the “Restricted Equity Consideration”).

Aggregate Consideration. (a) The aggregate consideration for all of the Capital Stock of the Company Shares shall be as follows (subject an amount equal to adjustment as set forth herein) (the “Merger Consideration”): (i) USD $20,000,000.00 payable in cash 1,500,000 (the “Aggregate Cash Consideration”), (A) minus the amount by which the Estimated Working Capital as set forth on the Estimated Closing Statement is less than the Working Capital Target, or (B) plus the amount by which the Estimated Working Capital as set forth on the Estimated Closing Statement is greater than the Working Capital Target (as the case may be, the “Estimated Working Capital Adjustment”); plus (ii) 650,000 shares of which Parent Common Stock (athe “Parent Shares” and together with the Aggregate Cash Consideration, collectively, the “Purchase Price”). (b) The Aggregate Cash Consideration, minus or plus (as the case may be) the Estimated Working Capital Adjustment to be applied against the Initial Cash Consideration, will be paid in installments as follows: (i) the initial installment representing $12,000,000.00 250,000, minus or plus (as the case may be) the Estimated Working Capital Adjustment (collectively, “Initial Cash Consideration”) shall be paid at the Closing (the “Closing Cash Consideration”), (b) $1,000,000.00 shall be paid on each quarterly anniversary of the Closing Date for the first four quarters following the Closing (the “Quarterly Cash Consideration”in accordance with Section 2.4(c)(i) and (c2.4(c)(ii) $4,000,000.00 shall be paid on the fifteen-month anniversary of the Closing Date (the “15-Month Cash Consideration” and together with the Quarterly Cash Consideration, the “Post-Closing Cash Consideration”)below; (ii) an amount of simple interest on three additional installments each equal to $250,000, subject to Section 2.3(b)(iii)(A) below, shall be paid every six months following the unpaid Post-Closing Cash Consideration from the Closing Date until the fifteen-month anniversary of the Closing Date, at a rate of six percent (6%) per annum, such interest payable in a lump sum on the fifteen-month anniversary of the Closing Date (the “Interest Payment”)Closing; and (iii) 1,794,455 shares one final installment representing $500,000 payable on the second anniversary of Buyer Common Stock the Closing, in each case minus the applicable Advisor Installment Fees (the “Equity Consideration”), of which (x) 717,782 shares of Buyer Common Stock shall be issued at the Closing (the “Non-Restricted Equity Consideration”)collectively, (y) 969,005 shares of Buyer Common Stock shall be issued at the Closing but subject to forfeiture as provided in Section 3.4(c) (the “NuCel Equity Consideration”ii) and (ziii) 107,668 shares of Buyer Common Stock shall be issued at the Closing but subject to forfeiture as provided in Section 3.4(d) (the “▇▇▇▇ Equity Consideration” and together with the NuCel Equity Consideration, the “Restricted Equity Installment Cash Consideration”). (c) Parent shall issue the Parent Shares to Vendors and Advisor in accordance with the Parent Share Entitlement set forth on Exhibit A hereto no later than (i) three (3) Business Days after the Closing, or (ii) if receipt of Parent Stockholder Approval is required by applicable Nasdaq listing rules, not greater than 60 days after the Closing, and Parent shall use commercially reasonable efforts to obtain such approval as soon as practicable. (d) Purchaser shall have the right to offset any Loss finally determined pursuant to the procedures and subject to the limitations set forth in Article VII to be owed to Purchaser Indemnitees, subject to the limitations contained in Article VII, first against any Installment Cash Consideration that has not been paid pursuant to Section 2.2(b) and second against the Vendor Indemnifying Parties on a several basis, and not joint and several, in accordance with the Pro Rata Portion. (e) Purchaser and Parent agree that Parent will make a capital contribution to Purchaser in an amount equal to the fair market value of the Parent Shares at the time the Parent Shares are issued (the “Capital Contribution”) and Parent will pay the Capital Contribution by issuing the Parent Shares to the Vendors. Purchaser will add an amount equal to the Capital Contribution to its capital in respect of the common shares in the authorized share structure of Purchaser. (f) The Parent and the Company intend that the Parent Shares will be issued in a transaction exempt from registration under the Securities Act, by reason of section 4(a)(2) of the Securities Act, Rule 506 of Regulation D promulgated by the SEC thereunder, Regulation S promulgated by the SEC and/or Rule 701 of the Securities Act, and that all recipients of such shares of Parent Common Stock either (i) shall be “accredited investors” or not “U.S. Persons” as such terms are defined in Regulation D and Regulation S, respectively, or (ii) within the meaning of Rule 701 of the Securities Act, were employees or directors of the Company, its parent or its majority-owned subsidiaries or consultants who were natural persons and who provided bona fide services to the Company, its parent or its majority-owned subsidiaries (provided that such services were not in connection with the offer or sale of securities in a capital raising transaction and did not directly or indirectly promote or maintain a market for the Company’s securities), and, in each case, the Parent Shares will be “restricted securities” within the meaning of the Federal Securities Laws and may not be offered, sold, pledged, assigned or otherwise transferred unless (A) a registration statement with respect thereto is effective under the Securities Act and any applicable state securities laws, or (B) an exemption from such registration exists and either the Parent receives an opinion of counsel to the holder of such securities, which counsel and opinion are satisfactory to the Parent, that such securities may be offered, sold, pledged, assigned or transferred in the manner contemplated without an effective registration statement under the Securities Act or applicable state securities laws, or the holder complies with the requirements of Regulation S, if applicable; and the certificates representing such Parent Shares will bear an appropriate legend and restriction on the books of the Parent’s transfer agent to that effect. (g) The unpaid portion of the Aggregate Cash Consideration shall be secured by: (i) a guarantee of the Parent in the form of the guaranty agreement attached hereto as Exhibit C (the “Guaranty Agreement”); and (ii) a General Security Agreement over the Secured Assets in the form attached hereto as Exhibit D (the “General Security Agreement”).