Deferred Consideration. (a) Notwithstanding anything in this Agreement, none of Parent, Merger Sub or any of their respective Affiliates (A) shall be under any obligation or have any duty to act in such a manner that any of the Deferred Consideration is paid, or if payable, is maximized, (B) will owe any holder of Company Capital Stock any fiduciary or other similar duty in respect of this Section 3.4, or (C) will have any obligation, or shall be bound by an agreement or covenant of any kind, in respect of this Section 3.4 other than an obligation to comply with the covenants and agreements expressly set forth in this Section 3.4, it being the Parties’ intention that any other covenants, agreements and/or obligations are expressly waived and disclaimed; provided, however, Parent and the Company (following the Closing) shall not take action with the primary and bad faith intention of avoiding or reducing the Deferred Consideration. (b) Within thirty (30) days after each Deferred Consideration milestone has been achieved in accordance with Schedule 3 hereto, Parent shall deliver a notice to the Representative of such milestone, and within ninety (90) days after the achievement of each Deferred Consideration milestone, Parent shall pay, or cause the Surviving Corporation to pay, the Pro Rata Share of each Share Recipient, to be paid in the method elected by Parent in accordance with Section 3.4(c). (c) At its sole discretion, Parent may choose to pay the Deferred Consideration in Cash or in Parent Consideration Stock or a combination of both, so long as the Parent Consideration Stock is issued in accordance with this Agreement. (d) In no event shall the total number of Parent Consideration Stock issued hereunder (including, without limitation any Parent Consideration Stock issued as part of the Closing Consideration or the Deferred Consideration) exceed 19.9% of the total outstanding capital stock of Parent as of the Effective Time (not including any Parent capital stock that is owned by Parent and without assuming the conversion or exercise of any options, warrants or other convertible securities), unless Parent has first obtained the required stockholder approval of the issuance of more than such number of Parent Consideration Stock pursuant to NASDAQ Marketplace Rule 5635. (e) The Share Recipients agree and acknowledge as to the Milestone Payment Amounts (as defined in Schedule 3 hereto) that (i) there are no representations or warranties of Parent other than those expressly set forth in this Agreement; and (ii) they have not relied and will not rely in respect of this Agreement or the transactions contemplated hereby upon any document or written or oral information previously furnished to or discovered by them, other than this Agreement. (f) Any Milestone Payment Amounts made pursuant to this Section 3.4 represent consideration in addition to the Closing Consideration. The right to receive the Milestone Payment Amounts: (i) does not give any Share Recipient dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Company; (ii) shall not be evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferrable, except by (A) will or intestate succession to an immediate family member, (B) to a trust whose beneficiaries consist exclusively of one or more of the undersigned and/or an immediate family member, (C) by operation of law, (D) by instrument to an inter vivos or testamentary trust in which the Share Recipient’s right to the Milestone Payment Amounts is to be passed to beneficiaries upon the death of the trustee, (E) pursuant to a court order, (F) if such Share Recipient is a partnership, trust or a limited liability company, pursuant to (1) a permitted disposition to one or more partners or members of such Share Recipient or (2) an assignment or transfer to one or more Affiliates of such Share Recipient (excluding for purposes hereof, any portfolio company of such Share Recipient), (G) if such Share Recipient is a corporation, to an Affiliate of such Share Recipient or (H) without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; provided that, in each case, such transferee or assignee shall provide to each of Parent and the Representative, at their respective request, any evidence of the transfer or assignment that Parent or the Representative, as the case may be, may reasonably request. None of Parent, the Surviving Corporation or the Representative shall give effect to any purported assignment or transfer made in contravention of this clause (f); (iv) shall not accrue or pay interest on any portion thereof; and (v) does not represent any right other than the right to receive the consideration set forth in this Schedule 3.4. Any attempted transfer of the right to receive the Milestone Payment Amounts, other than as specifically permitted by the immediately preceding sentence, shall be null and void. (g) Subject to the limitations set forth in Article 7 (Indemnification), Parent shall be entitled to set-off any unpaid indemnification obligations determined pursuant to Article 7 against the then unpaid Milestone Payment Amounts.
Appears in 1 contract
Sources: Merger Agreement (Athenex, Inc.)
Deferred Consideration. 4.1 Subject to receipt by the Buyer or the Company of documentation evidencing the Closing of one or more Considered Contracts and the limitation set forth in clause 4.2, the Buyer covenants and agrees to pay to the Seller by way of Deferred Consideration £75,000 in respect of each Considered Contract which is Closed within 90 days following Completion (such period to be referred to herein as the “Deferred Consideration Period”).
4.2 The total amount of Deferred Consideration payable pursuant to clause 4.1 shall not exceed £300,000.
4.3 Any and all amounts payable pursuant to clause 4.1 shall be paid by the Buyer via wire transfer of cleared funds to the account, details of which are set out in clause 3.3(a), within five (5) Business Days of a Considered Contract being Closed.
4.4 The Buyer hereby confirms, and will procure that the Company shall:
(a) Notwithstanding use reasonable commercial endeavours to effect the Closing of each Considered Contract within 90 days of Completion and that it shall not, and shall procure that the Company shall not do anything deliberately which could have the effect of delaying or preventing the Closing of any such Considered Contract; and
(b) comply with the provisions of the PL Side Letter and not vary the terms of the PL Side Letter or put in this Agreement, none of Parent, Merger Sub or place any other incentive arrangement in relation to any of their respective Affiliates the Considered Contracts other than with the prior written consent of the Seller (A) shall such consent not to be under any obligation unreasonably withheld or have any duty to act in such a manner that any delayed).
4.5 At the end of the Deferred Consideration is paidPeriod, or if payable, is maximized, (B) will owe any holder of Company Capital Stock any fiduciary or other similar duty in respect of this Section 3.4, or (C) will have any obligation, or the “Aggregate Unearned Deferred Consideration Amount” shall be bound determined by an agreement or covenant subtracting the total amount of any kind, in respect of this Section 3.4 other than an obligation to comply with the covenants and agreements expressly set forth in this Section 3.4, it being the Parties’ intention that any other covenants, agreements and/or obligations are expressly waived and disclaimed; provided, however, Parent and the Company (following the Closing) shall not take action with the primary and bad faith intention of avoiding or reducing the Deferred Consideration.
(b) Within thirty (30) days after each all Deferred Consideration milestone has been achieved in accordance with Schedule 3 hereto, Parent shall deliver a notice earned pursuant to the Representative of such milestone, and within ninety (90) days after the achievement of each Deferred Consideration milestone, Parent shall pay, or cause the Surviving Corporation to pay, the Pro Rata Share of each Share Recipient, to be paid in the method elected by Parent in accordance with Section 3.4(c).
(c) At its sole discretion, Parent may choose to pay clause 4.1 during the Deferred Consideration in Cash or in Parent Period from £300,000. For the avoidance of doubt, the Aggregate Unearned Deferred Consideration Stock or a combination of both, so long as the Parent Consideration Stock is issued in accordance with this Agreement.
(d) In no event shall the total number of Parent Consideration Stock issued hereunder (including, without limitation any Parent Consideration Stock issued as part of the Closing Consideration or the Deferred Consideration) exceed 19.9% of the total outstanding capital stock of Parent as of the Effective Time (not including any Parent capital stock that is owned by Parent and without assuming the conversion or exercise of any options, warrants or other convertible securities), unless Parent has first obtained the required stockholder approval of the issuance of more than such number of Parent Consideration Stock pursuant to NASDAQ Marketplace Rule 5635.
(e) The Share Recipients agree and acknowledge as to the Milestone Payment Amounts (as defined in Schedule 3 hereto) that (i) there are no representations or warranties of Parent other than those expressly set forth in this Agreement; and (ii) they have not relied and will not rely in respect of this Agreement or the transactions contemplated hereby upon any document or written or oral information previously furnished to or discovered by them, other than this Agreement.
(f) Any Milestone Payment Amounts made pursuant to this Section 3.4 represent consideration in addition to the Closing Consideration. The right to receive the Milestone Payment Amounts: (i) does not give any Share Recipient dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Company; (ii) shall Amount cannot be evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferrable, except by (A) will or intestate succession to an immediate family member, (B) to a trust whose beneficiaries consist exclusively of one or more of the undersigned and/or an immediate family member, (C) by operation of law, (D) by instrument to an inter vivos or testamentary trust in which the Share Recipient’s right to the Milestone Payment Amounts is to be passed to beneficiaries upon the death of the trustee, (E) pursuant to a court order, (F) if such Share Recipient is a partnership, trust or a limited liability company, pursuant to (1) a permitted disposition to one or more partners or members of such Share Recipient or (2) an assignment or transfer to one or more Affiliates of such Share Recipient (excluding for purposes hereof, any portfolio company of such Share Recipient), (G) if such Share Recipient is a corporation, to an Affiliate of such Share Recipient or (H) without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; provided that, in each case, such transferee or assignee shall provide to each of Parent and the Representative, at their respective request, any evidence of the transfer or assignment that Parent or the Representative, as the case may be, may reasonably request. None of Parent, the Surviving Corporation or the Representative shall give effect to any purported assignment or transfer made in contravention of this clause (f); (iv) shall not accrue or pay interest on any portion thereof; and (v) does not represent any right other less than the right to receive the consideration set forth in this Schedule 3.4. Any attempted transfer of the right to receive the Milestone Payment Amounts, other than as specifically permitted by the immediately preceding sentence, shall be null and void0.
(g) Subject to the limitations set forth in Article 7 (Indemnification), Parent shall be entitled to set-off any unpaid indemnification obligations determined pursuant to Article 7 against the then unpaid Milestone Payment Amounts.
Appears in 1 contract
Deferred Consideration. In addition to the Initial Consideration and any Earnout Consideration, Parent shall pay to the Sellers an aggregate amount of $14,000,000 (athe “Deferred Consideration Payment”), payable in twelve (12) Notwithstanding anything in this Agreement, none equal quarterly installments over a period of Parent, Merger Sub or any of their respective Affiliates thirty-six (A36) shall be under any obligation or have any duty to act in such a manner that any months immediately following the Closing Date. Each installment of the Deferred Consideration is paid, or if payable, is maximized, (B) will owe any holder of Company Capital Stock any fiduciary or other similar duty in respect of this Section 3.4, or (C) will have any obligation, or Payment shall be bound comprised of seventy-five percent (75%) cash (the “Deferred Cash Consideration”), payable in United States dollars, and twenty-five percent (25%) in shares of Parent Common Stock (the “Deferred Stock Consideration”), which shares shall be subject to the terms and conditions of Section 1(i)(iii) or Section 1(j), with the number of shares to be determined based on the applicable portion of the Deferred Stock Consideration divided by an agreement the Deferred Stock Consideration Stock Price. The Deferred Stock Consideration shall be allocated among the Sellers in accordance with their respective Pro Rata Shares. For the avoidance of doubt, the obligation to pay the Deferred Consideration Payment shall not be contingent upon the future performance of the Company or covenant the Business, nor upon the continued employment of any kindSeller, but are instead fixed payment obligations payable in respect of this Section 3.4 other than an obligation to comply with the covenants amounts and agreements expressly set forth in this Section 3.4, it being at the Parties’ intention that any other covenants, agreements and/or obligations are expressly waived and disclaimedtimes specified above; provided, however, Parent and the Company (following the Closing) shall not take action with the primary and bad faith intention of avoiding or reducing that the Deferred Consideration.
(b) Within thirty (30) days after each Deferred Consideration milestone has been achieved in accordance with Schedule 3 hereto, Parent Payment shall deliver a notice be subject to the Representative of such milestone, and within ninety (90) days after the achievement of each Deferred Consideration milestone, Parent shall pay, or cause the Surviving Corporation to pay, the Pro Rata Share of each Share Recipient, to be paid in the method elected by Parent adjustment in accordance with Section 3.4(c1(i)(iii).
(c, set-off for finally determined indemnification obligations in accordance with Section 1(n), downward adjustment for Covered Events in accordance with Section 1(m)(i)(A) At its sole discretionand Section 1(m)(ii), Parent may choose to pay and tax withholding, if any, in accordance with Section 1(g). The Parties intend and agree that the Deferred Consideration in Cash or in Parent Consideration Stock or Payment constitutes a combination fixed obligation for the purposes of both, so long as the Parent Consideration Stock is issued in accordance with this Agreement.
(d) In no event shall the total number of Parent Consideration Stock issued hereunder (including, without limitation any Parent Consideration Stock issued as part Subdivision 124-M of the Closing Consideration or the Deferred Consideration) exceed 19.9% of the total outstanding capital stock of Parent as of the Effective Time Income Tax Assessment Act 1997 (not including any Parent capital stock that is owned by Parent and without assuming the conversion or exercise of any options, warrants or other convertible securitiesCth), unless Parent has first obtained and the required stockholder approval of the issuance of more than such number of Parent Consideration Stock pursuant to NASDAQ Marketplace Rule 5635.
(e) The Share Recipients agree adjustments and acknowledge as to the Milestone Payment Amounts (as defined in Schedule 3 hereto) that (i) there are no representations or warranties of Parent other than those expressly set forth in this Agreement; set-off rights contemplated by Sections 1(i)(iii), 1(m)(i), and (ii) they have not relied and will not rely in respect of this Agreement or the transactions contemplated hereby upon any document or written or oral information previously furnished to or discovered by them, other than this Agreement.
(f) Any Milestone Payment Amounts made pursuant to this Section 3.4 represent consideration in addition to the Closing Consideration. The right to receive the Milestone Payment Amounts: (i) does not give any Share Recipient dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Company; (ii1(m)(ii) shall not be evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferrable, except by (A) will or intestate succession to an immediate family member, (B) to a trust whose beneficiaries consist exclusively of one or more construed as rendering the Deferred Consideration Payment contingent upon the future performance of the undersigned and/or an immediate family member, (C) by operation of law, (D) by instrument Company or the Business for Australian Tax purposes. The Parties shall use commercially reasonable efforts not to an inter vivos or testamentary trust in which the Share Recipient’s right to the Milestone Payment Amounts is to be passed to beneficiaries upon the death of the trustee, (E) pursuant to a court order, (F) if such Share Recipient is a partnership, trust or a limited liability company, pursuant to (1) a permitted disposition to one or more partners or members of such Share Recipient or (2) an assignment or transfer to one or more Affiliates of such Share Recipient (excluding for purposes hereof, take any portfolio company of such Share Recipient), (G) if such Share Recipient is a corporation, to an Affiliate of such Share Recipient or (H) without consideration in connection position inconsistent with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; provided that, in each case, such transferee or assignee shall provide to each of Parent and the Representative, at their respective request, any evidence of the transfer or assignment that Parent or the Representative, as the case may be, may reasonably request. None of Parent, the Surviving Corporation or the Representative shall give effect to any purported assignment or transfer made in contravention of this clause (f); (iv) shall not accrue or pay interest foregoing characterization on any portion thereof; Tax Return or in any Tax proceeding, unless required by applicable law. For the avoidance of doubt, B▇▇▇▇ and (v) does not represent any right other than the right to receive the consideration set forth in this Schedule 3.4. Any attempted transfer of the right to receive the Milestone Payment Amounts, other than as specifically permitted by the immediately preceding sentence, shall be null and void.
(g) Subject to the limitations set forth in Article 7 (Indemnification), Parent shall be entitled to exercise set-off any unpaid indemnification obligations determined pursuant rights solely to Article 7 against the then unpaid Milestone extent expressly permitted in Section 1(i)(iii). Any set-off applied to the Deferred Consideration Payment Amountsshall be applied first to the Deferred Cash Consideration portion of the relevant installment, and to the extent such Deferred Cash Consideration is insufficient, to the Deferred Stock Consideration portion.
Appears in 1 contract
Sources: Share Purchase Agreement (Bitmine Immersion Technologies, Inc.)
Deferred Consideration. (a) Notwithstanding anything In addition to the Initial Consideration, Purchaser shall pay deferred consideration under this Agreement by payment to Seller of a total of ten deferred consideration units (each a “Deferred Consideration Unit” and, together, the “Deferred Consideration”). The amount paid for any Deferred Consideration Unit will be based upon a schedule substantially in the form of Schedule I that Purchaser shall deliver to Seller no later than 5:00 p.m., New York time, on the Business Day immediately preceding the Closing Date (the “Closing Deferred Consideration Schedule”). The Closing Deferred Consideration Schedule shall include a table setting forth (i) the Deferred Consideration Unit Price to be paid by Purchaser for a Deferred Consideration Unit, which amount will vary based upon (A) the amount of the Initial Consideration paid by Purchaser as set forth in Schedule II; and (B) the month in which Purchaser pays such Deferred Consideration Unit as set forth in Schedule II (with the parties agreeing to make proportional adjustments to the applicable Deferred Consideration Unit Prices to the extent that the Initial Consideration falls between the values set forth under “Initial Consideration” in Schedule II); (ii) the estimated total Deferred Consideration, assuming payment of five Deferred Consideration Units on and as of July 31, 2009 and payment of the remaining five Deferred Consideration Units on and as of October 30, 2009; and (iii) the estimated Purchase Price, which shall be equal to the sum of the aggregate value of the Initial Consideration and the aggregate Deferred Consideration calculated in accordance with clause (ii) above. The Purchaser shall pay at least five Deferred Consideration Units on or prior to July 31, 2009 and the Deferred Consideration shall be payable in full on or prior to October 30, 2009 pursuant to the terms of the Closing Deferred Consideration Schedule. Subject to the foregoing sentence, Purchaser may pay a Deferred Consideration Unit or Deferred Consideration Units at any time and from time to time, without penalty, provided that, except as set forth in subsection Section 5.8(c), each Deferred Consideration Unit shall be in an amount or, in any case in which such payment includes Purchaser Common Stock, have a value (determined as provided in subsection (c)(ii) below), equal to the Deferred Consideration Unit Price for the month in which the Deferred Consideration Payment Date (as defined below) occurs.
(b) The Deferred Consideration or any payment of any portion thereof shall be payable, at Purchaser’s election, in cash or in Purchaser Common Stock or a combination of cash and Purchaser Common Stock. Purchaser’s right to elect Purchaser Common Stock as the form of consideration is subject to the further limitations set forth in Sections 5.7 and 5.8 and conditioned upon the fulfillment of each of the following conditions on and as of the date of the applicable payment (the “Deferred Consideration Payment Date”):
(i) no Purchaser Material Adverse Effect shall have occurred and be continuing;
(ii) immediately after giving effect to such payment, Seller would not own more than 9.9% of the Purchaser Common Stock then outstanding;
(iii) after giving effect to such payment, Seller shall not have received more than 5,653,398 shares of Purchaser Common Stock pursuant to this Agreement, none and, except if required by the terms of ParentSection 5.18 herein, Merger Sub the filing of a Notification and Report Form pursuant to the HSR Act, no consent or approval of Purchaser’s shareholders or any governmental or regulatory authority or other Person pursuant to applicable Law or listing standards or the organizational documents of Purchaser or any contract, judgment or order by which Purchaser or any of their respective Affiliates its Subsidiaries is bound shall be required to be obtained by Purchaser in connection with such payment (after giving effect all prior payments), including pursuant to NASDAQ Rule 4350(i);
(iv) Purchaser (A) shall be under in compliance with the applicable listing criteria, procedures and guidelines of NASDAQ; (B) shall not have received notice from NASDAQ of its intent to delist the Purchaser Common Stock; and (C) shall not have taken any obligation or steps to delist the Common Stock from NASDAQ;
(v) the Purchaser Common Stock proposed to be transferred shall have any duty been authorized for listing on NASDAQ, subject only to act in such a manner that any official notice of issuance;
(vi) Purchaser shall be, and shall have been during the 90-day period immediately preceding the Deferred Consideration is paidPayment Date, subject to the reporting requirements of section 13 or if payable15(d) of the Exchange Act and shall have filed all required reports under section 13 or 15(d) of the Exchange Act (other than Form 8-K reports), is maximizedas applicable, during the 12-month period immediately preceding such Deferred Consideration Payment Date;
(vii) the price of Purchaser Common Stock as of the close of trading on the NASDAQ the last Business Day prior to the Deferred Consideration Payment Date shall not be less than $10 per share; and
(viii) Purchaser shall not be insolvent or have made a general assignment for the benefit of its creditors or any filing of a petition in commercial insolvency or reorganization; nor shall there have been (A) any filing by any other Person against Purchaser or any of its Subsidiaries, which shall not have been stayed or dismissed within 180 days after the filing date or any adjudication of Purchaser or any such Subsidiary as bankrupt or insolvent, (B) will owe any holder filing by or with the consent of Company Capital Stock Purchaser or any fiduciary such Subsidiary of any other proceeding for the appointment of a receiver, a conciliator or an auditor thereof or other custodian or similar duty in respect of this Section 3.4, official for its respective business or (C) will have any obligation, or shall be bound by an agreement or covenant of any kind, in respect of this Section 3.4 other than an obligation to comply with the covenants and agreements expressly set forth in this Section 3.4, it being the Parties’ intention that any other covenants, agreements and/or obligations are expressly waived and disclaimed; provided, however, Parent and the Company (following the Closing) shall not take action with the primary and bad faith intention of avoiding or reducing the Deferred Consideration.
(b) Within thirty (30) days after each Deferred Consideration milestone has been achieved in accordance with Schedule 3 hereto, Parent shall deliver a notice to the Representative of such milestone, and within ninety (90) days after the achievement of each Deferred Consideration milestone, Parent shall pay, or cause the Surviving Corporation to pay, the Pro Rata Share of each Share Recipient, to be paid in the method elected by Parent in accordance with Section 3.4(c).
(c) At its sole discretion, Parent may choose to pay the Deferred Consideration in Cash or in Parent Consideration Stock or a combination of both, so long as the Parent Consideration Stock is issued in accordance with this Agreement.
(d) In no event shall the total number of Parent Consideration Stock issued hereunder (including, without limitation any Parent Consideration Stock issued as part of the Closing Consideration or the Deferred Consideration) exceed 19.9% of the total outstanding capital stock of Parent as of the Effective Time (not including any Parent capital stock that is owned by Parent and without assuming the conversion or exercise of any options, warrants or other convertible securities), unless Parent has first obtained the required stockholder approval of the issuance of more than such number of Parent Consideration Stock pursuant to NASDAQ Marketplace Rule 5635.
(e) The Share Recipients agree and acknowledge as to the Milestone Payment Amounts (as defined in Schedule 3 hereto) that (i) there are no representations or warranties of Parent other than those expressly set forth in this Agreement; and (ii) they have not relied and will not rely in respect of this Agreement or the transactions contemplated hereby upon any document or written or oral information previously furnished to or discovered by them, other than this Agreement.
(f) Any Milestone Payment Amounts made pursuant to this Section 3.4 represent consideration in addition to the Closing Consideration. The right to receive the Milestone Payment Amounts: (i) does not give any Share Recipient dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Company; (ii) shall not be evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferrable, except by (A) will or intestate succession to an immediate family member, (B) to a trust whose beneficiaries consist exclusively of one or more of the undersigned and/or an immediate family memberassets, (C) the appointment by operation any court of lawcompetent jurisdiction of a receiver, a conciliator or an auditor or other custodian (permanent or temporary) of the assets of Purchaser or any such Subsidiary, or any part thereof; or (D) the institution of proceedings for a composition with creditors by instrument to an inter vivos or testamentary trust in which the Share Recipient’s right to the Milestone Payment Amounts is to be passed to beneficiaries upon the death of the trusteeagainst Purchaser or any such Subsidiary, (E) pursuant to a court order, (F) if such Share Recipient is a partnership, trust or a limited liability company, pursuant to (1) a permitted disposition to one or more partners or members of such Share Recipient or (2) an assignment or transfer to one or more Affiliates of such Share Recipient (excluding for purposes hereof, any portfolio company of such Share Recipient), (G) if such Share Recipient is a corporation, to an Affiliate of such Share Recipient or (H) without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; provided that, in each casethe case of items (A) through (D) of this subsection (viii) as applied to a Subsidiary of Purchaser, such transferee event or assignee shall provide events would also reasonably be expected to each adversely and materially affect the value of Parent and Purchaser Common Stock after the Representative, at their respective request, any evidence of applicable Deferred Consideration Payment Date (the transfer or assignment that Parent or the Representative, as the case may be, may reasonably request. None of Parentevents specified in clauses (i) through (viii) collectively, the Surviving Corporation or the Representative shall give effect to any purported assignment or transfer made in contravention of this clause (f“Cash Payment Events”); (iv) shall not accrue or pay interest on any portion thereof; and (v) does not represent any right other than the right to receive the consideration set forth in this Schedule 3.4. Any attempted transfer of the right to receive the Milestone Payment Amounts, other than as specifically permitted by the immediately preceding sentence, shall be null and void.
(g) Subject to the limitations set forth in Article 7 (Indemnification), Parent shall be entitled to set-off any unpaid indemnification obligations determined pursuant to Article 7 against the then unpaid Milestone Payment Amounts.
Appears in 1 contract
Deferred Consideration. (a) Notwithstanding anything in this Agreement, none of Parent, Merger Sub or any of their respective Affiliates Within ninety (A90) shall be under any obligation or have any duty to act in such a manner that any days after the first anniversary of the Deferred Consideration is paidClosing, or if payable, is maximized, (B) will owe any holder the Purchaser shall prepare and delivery to the Owner the Purchaser’s calculation of Company Capital Stock any fiduciary or other similar duty in respect of this Section 3.4, or (C) will have any obligation, or shall be bound by an agreement or covenant of any kind, in respect of this Section 3.4 other than an obligation to comply with the covenants and agreements expressly set forth in this Section 3.4, it being the Parties’ intention that any other covenants, agreements and/or obligations are expressly waived and disclaimed; provided, however, Parent and the Company (following the Closing) shall not take action with the primary and bad faith intention of avoiding or reducing the Deferred Consideration.First Anniversary Medicare
(b) Within thirty (30) calendar days after each of the final determination of the First Anniversary Medicare Advantage Revenue pursuant to Section 1.10(a), in the event that the First Anniversary Medicare Advantage Revenue equals or exceeds the Baseline Medicare Advantage Revenue the Purchaser or Holdings shall pay fourteen million U.S. Dollars ($14,000,000) in cash (the “Deferred Consideration milestone has been achieved in accordance with Schedule 3 hereto, Parent shall deliver a notice Consideration”) to the Representative of such milestone, and within ninety Sellers (90) days after the achievement of each Deferred Consideration milestone, Parent shall pay, or cause the Surviving Corporation to pay, the Pro Rata Share of each Share Recipient, to be paid in the method elected by Parent in accordance with Section 3.4(csame proportions as the Closing Cash Payment was paid).
(c) At its sole discretion, Parent may choose to pay The payment of the Deferred Consideration is subject to (i) the Owner’s continued employment in Cash good standing at the Purchaser on the first anniversary of the Closing Date, (ii) each Seller Parties’ continued compliance with all restrictive covenants contained in each of the Transaction Documents, and (iii) the Owner’s execution and continued compliance with that certain Compliance Attestation, attached hereto as Exhibit D. The foregoing notwithstanding, if the Owner’s employment is terminated by the Purchaser without Cause (as defined in the Owner’s Employment Agreement) or with Good Reason by the Owner (as defined in Parent Consideration Stock or a combination the Owner’s Employment Agreement), the Owner shall have been deemed to satisfy the requirements of both, so long as the Parent Consideration Stock is issued in accordance with this AgreementSection 1.10(d).
(d) In no Notwithstanding anything in this Agreement to the contrary, the Purchaser shall not make any payments in respect of the Deferred Consideration that the Purchaser is otherwise required to make, and the Purchaser may defer such payments if there exists and is continuing a default or an event shall of default under any credit agreement, guarantee or other agreement existing as of the total number Closing Date under which Purchaser or any of Parent Consideration Stock issued hereunder its subsidiaries has borrowed money as of the Closing Date (includingeach, a “Debt Agreement”) or if such payment would constitute a breach of, or result in a default or an event of default (with or without limitation any Parent Consideration Stock issued as the giving of notice or passage of time or both) on the part of the Closing Consideration Purchaser or any of its subsidiaries under any such Debt Agreement or would not be permitted under any applicable laws. If Purchaser is unable to make any payments in accordance with the Deferred Consideration) exceed 19.9% of the total outstanding capital stock of Parent as of the Effective Time (not including any Parent capital stock that is owned by Parent and without assuming the conversion or exercise of any optionspreceding sentence, warrants or other convertible securities), unless Parent has first obtained the required stockholder approval of the issuance of more than such number of Parent Consideration Stock pursuant to NASDAQ Marketplace Rule 5635.Purchaser shall make
(e) The Share Recipients agree During the period commencing on the date hereof and acknowledge as to ending on the Milestone Payment Amounts (as defined in Schedule 3 hereto) that first anniversary of the Closing Date, the Purchaser (i) there are no representations or warranties shall not change the methods of Parent other than those expressly set forth accounting for the Medicare Advantage Revenue in this Agreement; and (ii) they have not relied and will not rely in respect a manner that would adversely affect the calculation of this Agreement or the transactions contemplated hereby upon any document or written or oral information previously furnished to or discovered by themMedicare Advantage Revenue, other than this Agreement.
(f) Any Milestone Payment Amounts made pursuant to this Section 3.4 represent consideration in addition to the Closing Consideration. The right to receive the Milestone Payment Amounts: (i) does not give any Share Recipient dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Company; (ii) shall not be evidenced by a certificate or other instrument; maintain segregated financial records of the Medicare Advantage Revenue, and (iii) shall not be assignable take any action or otherwise transferrable, except by (A) will or intestate succession to an immediate family member, (B) to a trust whose beneficiaries consist exclusively omission that affects Medicare Advantage Revenue with the sole purpose of one or more avoiding the payment of the undersigned and/or an immediate family member, (C) by operation of law, (D) by instrument to an inter vivos or testamentary trust in which the Share Recipient’s right to the Milestone Payment Amounts is to be passed to beneficiaries upon the death of the trustee, (E) pursuant to a court order, (F) if such Share Recipient is a partnership, trust or a limited liability company, pursuant to (1) a permitted disposition to one or more partners or members of such Share Recipient or (2) an assignment or transfer to one or more Affiliates of such Share Recipient (excluding for purposes hereof, any portfolio company of such Share Recipient), (G) if such Share Recipient is a corporation, to an Affiliate of such Share Recipient or (H) without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; provided that, in each case, such transferee or assignee shall provide to each of Parent and the Representative, at their respective request, any evidence of the transfer or assignment that Parent or the Representative, as the case may be, may reasonably request. None of Parent, the Surviving Corporation or the Representative shall give effect to any purported assignment or transfer made in contravention of this clause (f); (iv) shall not accrue or pay interest on any portion thereof; and (v) does not represent any right other than the right to receive the consideration set forth in this Schedule 3.4. Any attempted transfer of the right to receive the Milestone Payment Amounts, other than as specifically permitted by the immediately preceding sentence, shall be null and voidDeferred Consideration.
(g) Subject to the limitations set forth in Article 7 (Indemnification), Parent shall be entitled to set-off any unpaid indemnification obligations determined pursuant to Article 7 against the then unpaid Milestone Payment Amounts.
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