SHARE
(IF ANY) SHALL BE BASED UPON THE PERCENTAGE WHICH THE DISPUTED ITEMS NOT
DETERMINED IN FAVOR OF PARENT BEARS TO THE AGGREGATE AMOUNT OF ALL ITEMS
DISPUTED, AND (II) THE BALANCE SHALL BE PAID BY THE PARTICIPATING SHAREHOLDERS
(WITH THE PARTICIPATING SHAREHOLDERS' PORTION BEING FUNDED FROM THE ADJUSTMENT
ESCROW; PROVIDED, HOWEVER, IF THE ADJUSTMENT ESCROW IS INSUFFICIENT TO SATISFY
SUCH PARTICIPATING SHAREHOLDER PORTION, THE PARTICIPATING SHAREHOLDERS SHALL PAY
SUCH INSUFFICIENCY AS SOON AS PRACTICABLE IN ACCORDANCE WITH THEIR PROPORTIONATE
SHARE).
SECTION 4.4.
Payment of Merger Consideration.
The Merger Consideration shall
be payable to the Participating Shareholders as follows:
(A)
AT THE CLOSING, PARENT SHALL DEPOSIT WITH
THE PAYING AGENT AN AMOUNT IN CASH (THE "MERGER PAYMENT FUND") EQUAL TO THE
DIFFERENCE BETWEEN (I) THE ESTIMATED MERGER CONSIDERATION AND (II) THE SUM OF
(A) FOUR HUNDRED AND FIFTY THOUSAND
DOLLARS ($450,000) (THE "ADJUSTMENT
ESCROW") AND (B) SEVEN MILLION DOLLARS ($7,000,000) (THE "INDEMNITY ESCROW");
PROVIDED THAT PARENT MAY ELECT TO PAY OR CAUSE THE SURVIVING CORPORATION TO PAY
THE AMOUNTS SET FORTH ON SCHEDULE 4.4(A) DIRECTLY AND DEDUCT SUCH AMOUNTS FROM
THE AMOUNT OF THE MERGER PAYMENT FUND THAT IS DEPOSITED WITH THE PAYING AGENT.
AT THE CLOSING, PARENT WILL DEPOSIT THE ADJUSTMENT ESCROW AND THE INDEMNITY
ESCROW WITH MELLON INVESTOR SERVICES, LLC (THE "ESCROW AGENT").
THE ESCROW
AGENT WILL HOLD AND DISBURSE THE ADJUSTMENT ESCROW AND THE INDEMNITY ESCROW IN
ACCORDANCE WITH THE ESCROW AGREEMENT (AND IN THE CASE OF THE ADJUSTMENT ESCROW)
SECTION 4.5.
THE PAYING AGENT SHALL, PURSUANT TO THE PAYING AGENT AGREEMENT,
IMMEDIATELY UPON CLOSING PAY FROM THE MERGER PAYMENT FUND THE COMPANY'S ACCRUED
LEGAL, INVESTMENT BANKING AND OTHER COSTS RELATED TO THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND FUNDED INDEBTEDNESS IN THE
AMOUNTS SET FORTH ON SCHEDULE 4.4(A) (UNLESS PARENT ELECTS TO PAY OR CAUSE THE
SURVIVING CORPORATION TO PAY SUCH AMOUNTS DIRECTLY) AND DISTRIBUTE THE REMAINDER
OF THE MERGER PAYMENT FUND TO THE PARTICIPATING SHAREHOLDERS IN ACCORDANCE WITH
THEIR DISTRIBUTION SHARE OF THE MERGER PAYMENT FUND.
(B)
NO LATER THAN TEN (10) DAYS AFTER THE
EFFECTIVE TIME, THE PAYING AGENT SHALL MAIL TO EACH COMPANY COMMON SHAREHOLDER
(I) A LETTER OF TRANSMITTAL (WHICH SHALL SPECIFY
15
THAT DELIVERY SHALL BE EFFECTED, AND RISK OF LOSS AND TITLE TO CERTIFICATES
REPRESENTING OUTSTANDING SHARES OF COMPANY COMMON STOCK (THE "COMPANY COMMON
STOCK CERTIFICATES") SHALL PASS, ONLY UPON PROPER DELIVERY OF THE COMPANY COMMON
STOCK CERTIFICATES TO THE PAYING AGENT) AND (II) INSTRUCTIONS FOR USE IN
EFFECTING THE SURRENDER OF THE COMPANY COMMON STOCK CERTIFICATES FOR PAYMENT OF
THE MERGER PAYMENT FUND THEREFORE, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS
EXHIBIT 2.3(B).
UPON SURRENDER OF COMPANY COMMON STOCK CERTIFICATES TO THE
PAYING AGENT, TOGETHER WITH SUCH LETTER OF TRANSMITTAL DULY EXECUTED AND ANY
OTHER REQUIRED DOCUMENTS, THE HOLDER OF SUCH COMPANY COMMON STOCK CERTIFICATE(S)
SHALL BE ENTITLED TO RECEIVE HIS, HER OR ITS DISTRIBUTION SHARE OF THE MERGER
PAYMENT FUND AT THE EFFECTIVE TIME, AND THE COMPANY COMMON STOCK CERTIFICATE
SHALL BE CANCELLED.
UNTIL