Common use of Procedure for Payment Clause in Contracts

Procedure for Payment. (i) Immediately after the Effective Time, (A) Parent will cause the Surviving Corporation to deliver to Empire (the "Paying Agent") the Merger Cash (the "Payment Fund") and (B) Parent will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, to each record holder of outstanding Empire Shares for the holder to use in surrendering the certificates which represented his or its Empire Shares against payment of the Merger Consideration. No interest will accrue or be paid to the holder of any outstanding Empire Shares. Pending payment of the Payment Fund to the Empire Stockholders, the Paying Agent shall maintain the Payment Fund in cash or cash equivalent investments, and may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (ii) Upon surrender to the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former Empire Stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cash. (v) Parent shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (i) Immediately Promptly after the Effective Time, (A) Parent the Buyer will cause the Surviving Corporation to deliver furnish a bank or trust company designated by the Buyer and reasonably acceptable to Empire the Target (the "Paying Agent") with cash sufficient for the Paying Agent to make prompt payment of the Merger Cash Consideration to all holders of outstanding Target Shares (other than any Buyer-owned Shares), upon the surrender of the Target Shares by the holder thereof to the Paying Agent along with a properly executed letter of transmittal (the "Payment Fund") and (B) Parent the Buyer will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in a form and substance reasonably satisfactory to each of the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, Parties to each record holder of outstanding Empire Target Shares for the holder to use in surrendering the certificates which represented his his, her or its Empire Target Shares ("Certificates") against payment of the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the amount of cash payable for the Target Shares represented by such Certificate pursuant to Section 2(d)(v). In the event of a transfer of ownership of Target Shares which is not registered in the transfer records of the Target, payment may be made with respect to such Target Shares to such a transferee if the Certificate representing such Target Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. No interest will accrue or be paid to the holder of any outstanding Empire Target Shares. Pending payment of the Payment Fund to the Empire Stockholders, . (ii) The Buyer may cause the Paying Agent shall maintain to invest the cash included in the Payment Fund in cash one or cash equivalent investmentsmore of the permitted investments set forth in the agreement between the Payment Agent and the Buyer, which agreement shall be in form and substance reasonably satisfactory to each of the Parties; provided, however, that the terms and conditions of the investments shall be such as to permit the Paying Agent to make prompt payment of the Merger Consideration as necessary. The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (ii) Upon surrender , and the Buyer will cause the Surviving Corporation to replace promptly any portion of the Payment Fund which the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Considerationloses through investments. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) in excess of $100,000 remaining 60 days after the Effective Time, and any or all of the Payment Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter after such 180-day period all former Empire Stockholders shareholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. (viv) Parent The Buyer shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (i) Immediately after the Effective Time, (A) Parent the Buyer will cause deposit with a commercial bank or such other Person as shall be reasonably acceptable to the Surviving Corporation to deliver to Empire Target (the "Paying Agent") the Merger Cash a corpus (the "Payment Fund") consisting of cash sufficient in the aggregate for the Paying Agent to make full payment of the Merger Consideration to the holders of record immediately prior to the Effective Time of all of the outstanding Target Shares (other than any Dissenting Shares and Buyer-owned Shares) and (B) Parent the Buyer will cause the Paying Agent to mail a letter of transmittal in customary and reasonable form (with instructions for its use) in the form attached hereto as Exhibit Dwhich shall specify that delivery shall be effected, together with such other customary documents as may be required pursuant and risk of loss and title to such instructions, including without limitation, a Form W-8 or W-9, to each record holder of outstanding Empire Shares for the holder to use in surrendering the certificates (the "Certificates") which represented his or its Empire Target Shares against payment shall pass only upon actual delivery thereof to the Paying Agent and shall contain instructions for use in effecting the surrender of such Certificates in exchange for the Merger Consideration). Upon surrender of a Certificate to the Paying Agent for cancellation, together with a duly executed letter of transmittal and such other documents as may be reasonably requested by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the amount of cash, without interest, into which the Target Shares theretofore represented by such Certificate shall have been converted at the Effective Time pursuant to Section 2(d)(v); and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Target Shares that is not registered in the transfer records of the Surviving Corporation, payment may be made to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of such Certificate or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by Section 2(e)(i), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the amount of cash, without interest, into which the Target Shares theretofore represented by such Certificate shall have been converted at the Effective Time pursuant to this Section 2(d)(v). No interest will accrue or be paid to the holder of any outstanding Empire Target Shares. Pending payment In the event a Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Payment Fund person claiming such Certificate to be lost, stolen or destroyed and, if required by Buyer or the Empire StockholdersSurviving Corporation, upon the posting by such person of a bond in such amount as Buyer or the Surviving Corporation may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate and upon such person's compliance with the other requirements set forth in this Section 2(e)(i), the Paying Agent shall maintain will issue in respect of such lost, stolen or destroyed Certificate, the Merger Consideration to be received by virtue of the Merger with respect to the Target Shares represented thereby. (ii) The Buyer may cause the Paying Agent to invest the Payment Fund in cash one or cash equivalent investmentsmore of the permitted investments set forth on Exhibit B attached hereto; provided, however, that the terms and conditions of the investments shall be such as to permit the Paying Agent to make prompt payment of the Merger Consideration as necessary. The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (ii) Upon surrender to , and the Buyer will deposit promptly with the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership portion of the number of full Merger Shares and the cash consideration described as part of the Merger ConsiderationPayment Fund which is lost through investments. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 one hundred eighty (180) days after the Effective Time, and thereafter all former Empire Stockholders stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. (viv) Parent The Buyer shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (ia) Immediately after the Effective Time, (Ai) Parent will cause the Surviving Corporation to deliver furnish to Empire Computershare Trust Company (the "“Paying Agent"”) an amount of cash (the “Payment Fund”) sufficient for the Paying Agent to make full payment of the Merger Cash Consideration to the record holders of Target Shares issued and outstanding immediately before the Effective Time (other than any Dissenting Shares, Parent-owned Shares and Target Shares held in the "Payment Fund"treasury of Target) and (Bii) Parent will cause the Paying Agent to mail a letter of transmittal (with which shall be in customary form and shall provide instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, to each record holder of Target Shares issued and outstanding Empire immediately before the Effective Time (other than any Dissenting Shares, Parent-owned Shares and Target Shares held in the treasury of Target) for the holder to use in surrendering the certificates which that represented his his, her or its Empire Target Shares against payment of the Merger Consideration. Upon surrender of such Target Shares, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Paying Agent, the Paying Agent shall promptly pay to the holders thereof the aggregate Merger Consideration into which such Target Shares shall have been converted pursuant to Section 2.4(e). No interest will accrue or be paid to the holder of any outstanding Empire Target Shares. Pending payment of the Payment Fund to the Empire Stockholders, . (b) Surviving Corporation may cause the Paying Agent shall maintain to invest the cash included in the Payment Fund in cash one or cash equivalent investmentsmore Permitted Investments, provided that the terms and conditions of the investments shall be such as to permit the Paying Agent to make prompt payment of the Merger Consideration as necessary. Surviving Corporation may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and Surviving Corporation shall replace promptly any portion of the Payment Fund that the Paying Agent loses through the investments. (iic) Upon surrender to the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former Empire Stockholders stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar lawsLaws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. Any Merger Consideration remaining unclaimed as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by applicable Law, become the property of Surviving Corporation free and clear of any claims or interests of any Person previously entitled thereto. (vd) Parent shall cause the Surviving Corporation to shall pay all charges and expenses of the Paying Agent. (vie) No fraction Notwithstanding anything in this Agreement to the contrary, Parent, Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any former holder of a Merger Share will Target Shares or Target Options pursuant to this Agreement any amount as may be issuedrequired to be deducted and withheld with respect to the making of such payment under applicable Tax Laws. To the extent that amounts are so properly withheld by Parent, Surviving Corporation or the Paying Agent, as the case may be, and are paid over to the appropriate Governmental Entity in accordance with applicable Law, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Target Shares or Target Options in respect of which such deduction and withholding was made by Parent, Surviving Corporation or the Paying Agent, as the case may be.

Procedure for Payment. (i) Immediately after the Effective Time, (A) Parent MOLI will cause the Surviving Corporation furnish to deliver to Empire Interwest Transfer Company (the "Paying Exchange Agent") a stock certificate (issued in the Merger Cash (name of the "Payment Fund"Exchange Agent or its nominee) representing the 18,823,288 MOLI Shares to be issued to non-dissenting CO-OP Stockholders pursuant to the Conversion Ratio, and (B) Parent MOLI will cause the Paying Exchange Agent to mail a letter of transmittal (with instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, B to each record holder of outstanding Empire CO-OP Shares for the holder to use in surrendering the certificates certificate(s) which represented his his, her, or its Empire CO-OP Shares against payment in exchange for one or more certificates representing the number of MOLI Shares to which he, she, or it is entitled. The MOLI Shares issued in the Merger Consideration. No interest will accrue or be paid to the holder of any outstanding Empire Shares. Pending payment of the Payment Fund to the Empire StockholdersCO-OP Stockholders shall be, the Paying Agent shall maintain the Payment Fund in cash or cash equivalent investmentswhen issued, fully paid and non-assessable, and may cause shall be issued in reliance on exemptions from registration under the Paying Agent to pay over to Securities Act and state securities laws, and will be "restricted securities" within the Surviving Corporation any net earnings with respect to meaning of Rule 144 adopted under the investmentsSecurities Act. (ii) Upon surrender to the Paying Agent of MOLI will not pay any certificate representing Empire other dividend or make any other distribution on MOLI Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his a record date at or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time) to any record holder of outstanding CO-OP Shares until the holder surrenders for exchange his, her, or its certificates that represented CO-OP Shares. Buyer instead will pay the dividend or make the distribution to the Exchange Agent in trust for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership benefit of the number holder pending surrender and exchange. In no event will any holder of full Merger outstanding CO-OP Shares and be entitled to any interest or earnings on the cash consideration described as part of the Merger Considerationdividend or distribution pending receipt. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent MOLI may cause the Paying Exchange Agent to pay over to the Surviving Corporation return any portion of the Payment Fund (including any earnings thereon) MOLI Shares and dividends and distributions thereon remaining unclaimed 180 days after the Effective Time, and thereafter all former Empire Stockholders each remaining record holder of outstanding CO-OP Shares shall be entitled to look to the Surviving Corporation MOLI (subject to abandoned property, escheat, and other similar laws) as a general creditors creditor thereof with respect to the cashMOLI Shares and dividends and distributions thereon to which he, she, or it claims to be entitled upon surrender of his, her, or its certificates. (v) Parent shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (i) Immediately after the Effective Time, (A) Parent the Buyer will cause the Surviving Corporation to deliver furnish to Empire Bank One, N.A. (the "Paying Agent") the Merger Cash a corpus (the "Payment Fund") consisting of cash sufficient in the aggregate for the Paying Agent to make full payment of the Merger Consideration to the holders of all of the outstanding Target Shares (other than any Dissenting Shares and Buyer-owned Shares) and (B) Parent the Buyer will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, to each record holder of outstanding Empire Target Shares (other than any Dissenting Shares or Buyer-owned Shares) a letter of transmittal along with instructions for using such letter of transmittal to surrender the holder stock certificates representing such Target Shares. The letter of transmittal (or the instructions thereto) shall specify that delivery will be effected and risk of loss and title to use such Target Shares will pass to the Paying Agent only upon proper delivery of such Target Shares' stock certificates to the Paying Agent. The letter of transmittal shall be in surrendering such form and have such other provisions as the certificates which represented his or its Empire Shares against payment of the Merger ConsiderationBuyer may reasonably specify. No interest will accrue or be paid to the holder of any outstanding Empire Target Shares. . (ii) Pending payment of the Payment Fund to holders of the Empire StockholdersTarget Shares (other than any Dissenting Shares or Buyer-owned Shares), such funds shall be held and invested by the Paying Agent shall maintain as the Payment Fund in cash Buyer directs. Any net profit resulting from, or cash equivalent investmentsinterest or income produced by, and may cause the Paying Agent to pay over such investments will be payable to the Surviving Corporation or the Buyer, as the Buyer directs. Such investments shall be in obligations of or guaranteed by the United States of America or any net earnings agency thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation, respectively, or in deposit accounts, certificates of deposits or banker's acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks with respect to capital, surplus and undivided profits aggregating in excess of $100 million (based on the investments. (ii) Upon surrender to the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder most recent financial statements of such Empire Shares shall be entitled to receive in exchange for his bank which are then publicly available at the SEC or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(eotherwise); provided, however, that no loss on any such affidavit investment made pursuant to this Section 2(e)(ii) shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, relieve the Buyer or the Surviving Corporation or of its obligation to pay the Paying Agent with respect Merger Consideration. The Buyer will promptly replace an monies lost through any investment made pursuant to the Empire Certificates alleged to have been lost, stolen or destroyedthis Section 2(e)(ii). (iviii) Parent The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 ninety (90) days after the Effective Time, and thereafter all former Empire Stockholders stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. (viv) Parent The Buyer shall pay or shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (i) Immediately after Simultaneously with and as a condition to the Effective Time, : (A) Parent the Buyer will furnish, or will cause the Surviving Corporation to deliver furnish, to Empire a commercial bank or trust company or similar financial institution mutually acceptable to Buyer and the Company (the "Paying AgentPAYING AGENT") the Merger Cash a corpus (the "Payment FundPAYMENT FUND") consisting of cash sufficient in the aggregate for the Paying Agent to make full payment of the Merger Consideration to the holders of all of the outstanding Company Shares (other than any Dissenting Shares and Buyer-owned Shares); and (B) Parent the Buyer will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in form reasonably acceptable to each of the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, Company and the Buyer to each record holder of outstanding Empire Company Shares for the holder to use in surrendering the certificates which represented his his, her or its Empire Company Shares against payment of the Merger Consideration. No interest will accrue or be paid to the holder of any outstanding Empire Company Shares. Pending payment . (ii) The Paying Agent shall, pursuant to irrevocable instructions, pay the Merger Consideration out of the Payment Fund as soon as practicable after the Effective Time. Upon surrender of a certificate representing Company Shares for cancellation to the Empire Stockholders, the Paying Agent together with a letter of transmittal, duly executed, or an "agents message" in the case of a book entry transfer, and such other customary documents as may be required pursuant to such instructions, the holder of such certificate shall maintain be entitled to receive in respect thereof cash in an amount equal to the product of (1) the number of Company Shares formerly represented by such certificate, multiplied by (2) $5.85. If any holder of a certificate shall be unable to surrender such holder's certificates because such certificates have been lost, mutilated or destroyed, such holder may deliver in lieu thereof an affidavit and indemnity bond in form and substance and with surety reasonably satisfactory to the Surviving Corporation. (iii) The Buyer may cause the Paying Agent to invest the cash included in the Payment Fund in cash one or cash equivalent investmentsmore of the permitted investments set forth on EXHIBIT E attached hereto; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Paying Agent to make prompt payment of the Merger Consideration as necessary. The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (ii) Upon surrender , and the Buyer will replace, or will cause the Surviving Corporation to replace, promptly any portion of the Payment Fund which the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyedloses through investments. (iv) Parent The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former Empire Stockholders stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. (v) Parent The Buyer shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (i) Immediately after At the Effective TimeClosing, Parent will deposit, or cause to be deposited with U.S. Bank, National Association (Athe “Exchange Agent”) in cash (the “Payment Fund”) an amount sufficient in the aggregate for the Exchange Agent to make full payment of the amounts due at Closing in accordance with Section 2(e)(v) (assuming compliance with the terms hereof by all holders of Company Shares) and Section 2(e)(vii) (assuming compliance with the terms hereof by all holders of Company Options and Company Warrants, including Section 2(e)(vii)(C)). As soon as practicable following the Closing, and in any event within five (5) Business Days thereafter, Parent will cause the Surviving Corporation to deliver to Empire (the "Paying Agent") the Merger Cash (the "Payment Fund") and (B) Parent will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may F (a “Letter of Transmittal”) to be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, mailed to each record holder of outstanding Empire Company Shares for the holder to use in surrendering the certificates which that represented his his, her, or its Empire Company Shares against payment of the amount due such holder. Upon surrender of certificates by a holder representing his, her, or its Company Shares for cancellation to Parent or the Exchange Agent, together with a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent (including any required Internal Revenue Service Form W-9 or Form W-8), the holders of such certificates shall be entitled to receive in exchange therefor a certified check or wire transfer in the amount of U.S. dollars representing the applicable portion of the Merger ConsiderationConsideration that such holders have the right to receive at the Closing pursuant to Section 2(e)(v), and the certificates so surrendered shall forthwith be cancelled. Any Company Stockholder that surrenders certificates representing his, her, or its Company Shares for cancellation, together with a Letter of Transmittal, in accordance with the preceding sentence shall be entitled to be paid the applicable portion of the Merger Consideration that such holder has the right to receive at the Closing pursuant to Section 2(e)(v) at the Closing. No interest will accrue or be paid to the holder of any outstanding Empire Company Shares. Pending payment of the Payment Fund to the Empire Stockholders, the Paying Agent shall maintain the Payment Fund in cash or cash equivalent investments, and may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (ii) Upon surrender to The Exchange Agent shall hold the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with cash in the Payment Fund in trust and pay out such letter of transmittal and other documents, duly completed and validly executed cash in accordance with this Section 2. Any interest produced by cash deposited into the instructions thereto, the holder of such Empire Shares Payment Fund shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share the Surviving Corporation or Parent, as directed by Parent. The Surviving Corporation shall pay all charges and expenses, including those of Merger Sharesthe Exchange Agent, which shall be deposited incurred in connection with the Escrow Agent). Upon delivery exchange of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, Company Shares for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent may cause the Paying Exchange Agent to pay over to the Surviving Corporation any portion of the Payment Fund remaining five (including any earnings thereon5) remaining 180 days Business Days after the six-month anniversary of the Effective Time, and thereafter all former Empire Stockholders stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash upon surrender of their certificates. (v) Parent shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (ia) Immediately Prior to the Effective Time, Buyer shall appoint an agent (the "PAYING AGENT") for the purpose of receiving certificates representing Shares and paying the Merger Consideration. Buyer will make available to the Paying Agent, in such amounts as may be needed from time to time, the Merger Consideration to be paid in respect of the Shares. Promptly after the Effective Time, (A) Parent Buyer will cause the Surviving Corporation to deliver to Empire (the "Paying Agent") the Merger Cash (the "Payment Fund") and (B) Parent send, or will cause the Paying Agent to mail send, to each holder of Shares at the Effective Time a letter of transmittal for use in such exchange (with which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Shares to the Paying Agent) and instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, to each record holder of outstanding Empire Shares for the holder to use in surrendering effecting the certificates which represented his or its Empire Shares against payment surrender of certificate in exchange for the Merger Consideration. No interest will accrue or be paid to the holder of any outstanding Empire Shares. Pending payment of the Payment Fund to the Empire Stockholders, the Paying Agent shall maintain the Payment Fund in cash or cash equivalent investments, and may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (iib) Upon Each holder of Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the Paying Agent of any a certificate or certificates representing Empire Shares (each an "Empire Certificate") for cancellationsuch Shares, together with such a properly completed letter of transmittal and other documentscovering such Shares, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall will be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery in respect of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceledShares. Until so surrendered, each outstanding Empire Certificate will be deemed from From and after the Effective Time, all Shares which have been so converted shall no longer be outstanding and shall automatically be canceled and retired, and each such certificate shall, after the Effective Time, represent for all corporate purposes, other than only the payment of dividends, which shall be paid in full upon surrender of right to receive such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iiic) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days after Merger Consideration is to be paid to a Person other than the Effective Timeregistered holder of the Shares represented by the certificate or certificates surrendered in exchange therefor, and thereafter all former Empire Stockholders it shall be entitled a condition to look such payment that the certificate or certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Surviving Corporation (subject Paying Agent any transfer or other taxes required as a result of such payment to abandoned property, escheat, and a Person other similar laws) as general creditors thereof with respect than the registered holder of such Shares or establish to the cash. (v) Parent shall cause the Surviving Corporation to pay all charges and expenses satisfaction of the Paying AgentAgent that such tax has been paid or is not payable. For purposes of this Agreement, "PERSON" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (ia) Immediately after the Effective Time, (A) Parent the Buyer will cause the Surviving Corporation to deliver furnish to Empire a bank or trust company selected by the Buyer and approved prior to the Effective Time by the Company, which approval shall not be withheld unreasonably (the "Paying Agent") the Merger Cash ), a fund (the "Payment Fund") and consisting of cash and, if applicable, Spinoff Securities, sufficient in the aggregate for the Paying Agent to make full payment of the Merger Consideration, (B) Parent the Buyer will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, to each record holder of outstanding Empire Company Common Shares for the holder to use in surrendering the certificates which represented his or its Empire Company Common Shares against payment of the Merger ConsiderationConsideration and (C) the Buyer shall cause the Paying Agent to pay and issue the Merger Consideration to the holders of outstanding Company Common Shares entitled thereto. No interest will accrue or be paid to the holder of any outstanding Empire Company Common Shares. Pending payment of the Payment Fund to the Empire Stockholders, . (b) The Buyer may cause the Paying Agent shall maintain to invest the cash included in the Payment Fund in cash or cash equivalent investments, and Permitted Cash Investments. The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and the Buyer will cause the Surviving Corporation to replace promptly any portion of the Payment Fund which the Paying Agent loses through investments. (iic) Upon surrender to the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Consideration. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days one year after the Effective Time, and thereafter all former Empire Stockholders shareholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. (vd) Parent The Buyer shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.

Procedure for Payment. (i) Immediately In addition to the obligation of the Buyer to fund the Paying Agent pursuant to Section 2(c)(iv)(A) (but without duplicate payment), promptly after the Effective Time, (A) Parent the Buyer will cause the Surviving Corporation to deliver furnish a bank or trust company designated by the Buyer and reasonably acceptable to Empire the Target (the "Paying Agent") with cash sufficient for the Paying Agent to make prompt payment of the Merger Cash Consideration to all holders of outstanding Target Shares (other than any Buyer-owned Shares), upon the surrender of the Target Shares by the holder thereof to the Paying Agent along with a properly executed letter of transmittal (the "Payment Fund") ). At any time after obtaining Requisite Stockholder Approval, the Target may, and promptly after the Effective Time the Buyer will (B) Parent will to the extent not previously mailed by the Paying Agent), cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in a form and substance reasonably satisfactory to each of the form attached hereto as Exhibit D, together with such other customary documents as may be required pursuant to such instructions, including without limitation, a Form W-8 or W-9, Parties to each record holder of outstanding Empire Target Shares for the holder to use in surrendering the certificates which represented his his, her or its Empire Target Shares ("Certificates") against payment of the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the amount of cash payable for the Target Shares represented by such Certificate pursuant to Section 2(d)(v). In the event of a transfer of ownership of Target Shares which is not registered in the transfer records of the Target, payment may be made with respect to such Target Shares to such a transferee if the Certificate representing such Target Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. No interest will accrue or be paid to the holder of any outstanding Empire Target Shares. Pending payment of the Payment Fund to the Empire Stockholders, . (ii) The Buyer may cause the Paying Agent shall maintain to invest the cash included in the Payment Fund in cash one or cash equivalent investmentsmore of the permitted investments set forth in the agreement between the Payment Agent and the Buyer, which agreement shall be in form and substance reasonably satisfactory to each of the Parties; provided, however, that the terms and conditions of the investments shall be such as to permit the Paying Agent to make prompt payment of the Merger Consideration as necessary. The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments. (ii) Upon surrender , and the Buyer will cause the Surviving Corporation to replace promptly any portion of the Payment Fund which the Paying Agent of any certificate representing Empire Shares (each an "Empire Certificate") for cancellation, together with such letter of transmittal and other documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Empire Shares shall be entitled to receive in exchange for his or its Empire Certificate the Merger Consideration payable to such Holder (except for such Empire Stockholder's share of Merger Shares, which shall be deposited with the Escrow Agent). Upon delivery of such payment to the Empire Stockholder, the Empire Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Empire Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, which shall be paid in full upon surrender of such Empire Certificate or affidavit of lost certificate as described below, to evidence the ownership of the number of full Merger Shares and the cash consideration described as part of the Merger Considerationloses through investments. (iii) If any Empire Certificates shall have been lost, stolen or destroyed, Parent shall cause to be issued in exchange for such lost, stolen or destroyed Empire Certificates, upon the making of an affidavit of that fact by the holder thereof in form acceptable to Parent, such Merger Consideration as may be required pursuant to Section 1.3(e); provided, however, that any such affidavit shall include a covenant by such Empire Stockholder indemnifying Parent for any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Empire Certificates alleged to have been lost, stolen or destroyed. (iv) Parent The Buyer may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former Empire Stockholders shareholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cashcash payable upon surrender of their certificates. (viv) Parent The Buyer shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent. (vi) No fraction of a Merger Share will be issued.