Common use of Payment and Exchange of Certificates Clause in Contracts

Payment and Exchange of Certificates. (a) Immediately prior to the Effective Time, Acquiror shall pay to an exchange agent (the “Exchange Agent”) reasonably selected by the Company, by wire transfer of immediately available funds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration (determined before giving effect to the adjustments provided for in Section 3.4), minus (ii) the product of (A) the number of Dissenting Shares and (B) the Cash Per Fully-Diluted Common Share (determined before giving effect to the adjustments provided for in Section 3.4), minus (iii) the Escrow Amount, minus (iv) any amounts subtracted pursuant to Section 3.2(c) below; provided that Acquiror will promptly thereafter pay to the Exchange Agent any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Common Shares in accordance with Section 3.10 (which amounts shall not, for the avoidance of doubt, be payable from the Special Indemnification Escrow Funds). In the event that any holder of Dissenting Shares is entitled, pursuant to a final order and judgment in any appraisal action regarding Dissenting Shares under the DGCL that is no longer subject to further appeal or review whether by affirmance or expiration of any possible appeal or review, writ of certiorari, by leave, lapse of time or otherwise, to receive consideration that is greater in amount than the Cash Per Fully-Diluted Common Share for any such Dissenting Shares that such holder would have been entitled to receive pursuant to this Agreement, then (i) an amount equal to the Cash Per Fully-Diluted Common Share for any such Dissenting Shares shall be payable to such holder by Acquiror (which amount shall not, for the avoidance of doubt, be payable from the Special Indemnification Escrow Funds) and (ii) the excess of such consideration over the amount equal to the Cash Per Fully-Diluted Common Share for any such Dissenting Shares shall be payable from the Special Indemnification Escrow Funds.

Payment and Exchange of Certificates. (a) Immediately prior to After the Effective Time, Acquiror (i) within three (3) Business Days of receipt from a Pre-Closing Holder of an outstanding certificate or certificates for Company Shares (collectively, the “Certificates”) and a duly completed and duly executed letter of transmittal, in the form attached hereto as Annex F (“Letter of Transmittal”), Buyer shall pay to an such Pre-Closing Holder in exchange agent (therefor the “Exchange Agent”) reasonably selected Closing Per Company Share Consideration with respect to each Company Share held by the Company, by wire transfer of immediately available funds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration (determined before giving effect to the adjustments provided for in Section 3.4), minus such Pre-Closing Holder and (ii) each Pre-Closing Holder of Vested Options shall be entitled to receive from the product of (A) Surviving Corporation, and the number of Dissenting Shares and (B) the Cash Per Fully-Diluted Common Share (determined before giving effect to the adjustments provided for in Section 3.4), minus (iii) the Escrow Amount, minus (iv) any amounts subtracted pursuant to Section 3.2(c) below; provided that Acquiror will promptly thereafter Surviving Corporation shall pay to the Exchange Agent any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Common Shares in accordance with Section 3.10 (which amounts shall notits customary payroll or other applicable payment practices promptly following the Effective Time, for but in no event later than the avoidance first regular payroll run of doubtthe Surviving Corporation and its Subsidiaries after the Closing Date, be payable from the Special Indemnification Escrow Funds)Closing Per Company Share Consideration with respect to each Company Share issuable upon exercise of the Vested Options held by such holder. In Notwithstanding the foregoing, in the event that any Pre-Closing Holder delivers the Certificate(s) representing such Company Shares and a completed and executed Letter of Transmittal to Buyer at least one (1) Business Day prior to the Closing, Buyer shall pay the amount to which such holder is entitled in consideration therefor directly to such holder at the Closing. Pending such surrender and exchange of a Pre-Closing Holder’s Certificate(s) and a Letter of Transmittal, a holder’s Certificate(s) and any documents evidencing a holder’s Vested Options shall be deemed for all purposes to evidence such holder’s right to receive the portion of the Merger Consideration into which such Company Shares or Vested Options shall have been converted as a result of the Merger. If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the related Common Share or Preferred Share is registered, it shall be a condition to such payment that the Person requesting such payment shall pay to Buyer any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of Dissenting Shares is entitled, pursuant such share or establish to a final order and judgment in any appraisal action regarding Dissenting Shares under the DGCL that is no longer subject to further appeal or review whether by affirmance or expiration satisfaction of any possible appeal or review, writ of certiorari, by leave, lapse of time or otherwise, to receive consideration that is greater in amount than the Cash Per Fully-Diluted Common Share for any such Dissenting Shares Buyer that such holder would have tax has been entitled paid or is not payable. After the Effective Time, the transfer books of the Company shall be closed and there shall be no further registration of transfer of Common Shares or Preferred Shares. Notwithstanding the forgoing, if, between the date hereof and the Closing Date, Buyer notifies the Company in writing that Buyer desires to receive engage a paying agent to administer payments to be made by Buyer in respect of the Common Shares and Options pursuant to this Agreement, then (i) an amount equal Buyer and the Company shall, at the cost and expense of Buyer, use their respective reasonable best efforts to retain a paying agent selected by Buyer and reasonably acceptable to the Cash Per Fully-Diluted Common Share for any Company (the “Paying Agent”) to administer such Dissenting Shares shall be payable to such holder by Acquiror (which amount shall not, for the avoidance of doubt, be payable from the Special Indemnification Escrow Funds) and (ii) the excess of such consideration over the amount equal payments pursuant to the Cash Per Fully-Diluted Common Share for any terms of a paying agent agreement entered into among the parties and the Paying Agent, in which case, the Paying Agent shall so administer such Dissenting Shares shall be payable from the Special Indemnification Escrow Fundspayments.

Payment and Exchange of Certificates. (a) Immediately prior to At or immediately following the Effective TimeTime (and in any event on the Closing Date), Acquiror Buyer shall pay deliver or cause to be delivered to an exchange agent to be mutually agreed upon by Buyer and the Holder Representative prior to Closing (in such capacity, the “Exchange Agent”) reasonably selected by ), to be paid, on behalf of Buyer, to the Companyholders of shares of Company Stock (other than Dissenting Stockholders and the Company Warrants and to the Surviving Corporation to be paid to the Vested Optionholders, by wire transfer in each case entitled to receive a portion of immediately available funds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration pursuant to Section 3.1, (determined before giving effect to v) the adjustments provided for in Section 3.4), minus Estimated Merger Consideration plus (iiw) the Aggregate Liquidation Preference less (x) the product of (A) the number of Dissenting Shares and (B) the Cash Estimated Per Fully-Diluted Common Share Merger Consideration (determined based upon the Estimated Merger Consideration and before giving effect to the adjustments provided for in Section 3.43.6) by wire transfer of immediately available funds (such amount, the “Funding Amount”); provided, minus (iii) the Escrow Amounthowever, minus (iv) any amounts subtracted pursuant to Section 3.2(c) below; provided that Acquiror will Buyer shall promptly thereafter pay to deposit with the Exchange Agent by wire transfer of immediately available funds any amounts by which the Funding Amount increases due to any Dissenting Shares becoming Common non-Dissenting Shares in accordance with Section 3.10 (which amounts shall not, 3.12 for the avoidance benefit of doubtthe holders thereof. Buyer may increase the amount of the Funding Amount from time to time by the amount of (A) any Excess Payment or (B) any other amounts to be paid by or on behalf of Buyer hereunder, be payable from the Special Indemnification Escrow Funds). In the event that any holder of Dissenting Shares is entitled, pursuant to a final order and judgment in any appraisal action regarding Dissenting Shares under the DGCL that is no longer subject to further appeal or review whether by affirmance or expiration of any possible appeal or review, writ of certiorari, by leave, lapse of time or otherwise, to receive consideration that is greater in amount than the Cash Per Fully-Diluted Common Share for any such Dissenting Shares that such holder would have been entitled to receive pursuant to this Agreement, then (i) an amount equal each case to the Cash Per Fully-Diluted Common Share for any such Dissenting Shares extent that the Exchange Agent shall be payable utilized to such holder by Acquiror (which amount shall not, for the avoidance of doubt, be payable from the Special Indemnification Escrow Funds) and (ii) the excess facilitate payment of such consideration over the amount equal amounts to the Cash Per FullyPre-Diluted Common Share for any Closing Holders, in which case Buyer shall direct the Exchange Agent to distribute such Dissenting Shares shall be payable from amounts to the Special Indemnification Escrow FundsPre-Closing Holders in accordance with this Agreement as promptly as practicable following the deposit of such amounts with the Exchange Agent.

Payment and Exchange of Certificates. (a) Immediately Subject to the second sentence of Section 2.2(b) and Section 2.5(d), immediately prior to the Effective TimeTime of the Merger, Acquiror shall pay to an exchange agent (the “Exchange Agent”) reasonably selected by the CompanyCompany and reasonably acceptable to Acquiror (the rights and obligations of the Exchange Agent to be set forth in a customary agreement in form and substance reasonably acceptable to the Company and Acquiror), by wire transfer of immediately available funds, an amount (the “Funding Amount”) equal to (i) the Merger Consideration (determined before giving effect to Consideration, as adjusted by the adjustments provided for Estimated Adjustment Amount in accordance with Section 3.4)2.4, minus (ii) the product of (Ax) the number of Dissenting Common Shares and (By) the Cash Per Fully-Diluted Common Share (determined after giving effect to the adjustments to the Merger Consideration provided for in Section 2.4 but before giving effect to the adjustments provided for in Section 3.42.5), minus (iii) the Escrow Rollover Amount, minus if any. The Exchange Agent shall invest the Funding Amount in the manner specified by Acquiror, and interest payable thereon shall be solely for the account of Acquiror or the Surviving Corporation. Upon (iv1) any amounts subtracted pursuant to Section 3.2(c) below; provided that payment by Acquiror will promptly thereafter pay to the Exchange Agent any amounts by which of the Funding Amount increases due and (2) payment by Acquiror to any Dissenting Shares becoming Common Shares in accordance with Section 3.10 (which amounts shall not, for the avoidance Holder Representative of doubt, be payable from the Special Indemnification Escrow Funds). In the event that any holder of Dissenting Shares is entitled, estimated Holder Allocable Expenses pursuant to a final order and judgment in any appraisal action regarding Dissenting Shares under the DGCL that is no longer subject to further appeal or review whether by affirmance or expiration of any possible appeal or reviewSection 2.6, writ of certiorari, by leave, lapse of time or otherwise, to receive consideration that is greater in amount than the Cash Per Fully-Diluted Common Share for any such Dissenting Shares that such holder would have been entitled to receive pursuant to this Agreement, then (i) an amount equal to the Cash Per Fully-Diluted Common Share for any such Dissenting Shares Acquiror shall be payable deemed to such holder have satisfied its obligations to make payments in respect of the Merger Consideration other than (A) Acquiror’s obligation to make payments required by Acquiror (which amount shall not, for the avoidance of doubt, be payable from the Special Indemnification Escrow Funds) Section 2.5 and (iiB) the excess obligation of such consideration over Acquiror or the amount equal Surviving Corporation to make payments to Dissenting Stockholders, if any, following the Cash Per Fully-Diluted Common Share for any such Dissenting Shares shall be payable from Effective Time of the Special Indemnification Escrow FundsMerger.