Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15 (i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v) (A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vi) the Company’s estimate of aggregate Excess Cash; (vii) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; (viii) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x) (A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and type of Company Securities 16
Appears in 2 contracts
Sources: Merger Agreement (PTC Inc.), Merger Agreement
Allocation Certificate. At least three (3a) Three Business Days prior to the Closing Date, the Company shall deliver to the Buyer Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Financial Executive Officer of the CompanyCompany certifying as to the accuracy and completeness, setting forth and certifying on behalf in each case as of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15Closing, of:
(i) an estimated the Company’s good faith estimate of the Closing Balance Sheet; (ii) a statement Adjustment (the “Estimated Closing Working Capital StatementAdjustment”);
(ii) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or Company’s calculation of the Aggregate Consideration Value, (B) the amount by which of cash and stock consideration payable or issuable pursuant to Section 2.03(a) in respect of each share of Company Common Stock and Company Preferred Stock, (C) the Net Working Capital is greater than or equal to applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the Net Working Capital Targetapplicable Per Share Warrant Consideration in respect of each Company Warrant, which in each case based upon the Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; Adjustment;
(iii) the Estimated Company Debt not paid as name and mailing address and, if available, e-mail address, of immediately prior to the Effective Time, each Equityholder and Option Holder as set forth on in the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; Company’s records;
(iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Paymentscash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, together with a description and the amount of each element thereof and (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any Change required withholding (if any) with respect to each Equityholder and Option Holder, in Control Payments that are due and payable in connection with each case, as applicable, based upon the Closing, together with a description and the amount of each element thereofEstimated Closing Adjustment; and
(viv) the Company’s estimate of aggregate Excess Cash; (vii) date that each Equityholder acquired the number of shares of Company Common Stock and Company Preferred Stock Common or Preferred Stock and, if acquired after January 1, 2011, the cost basis of such shares.
(by Seriesb) outstanding; (viii) The Company shall promptly deliver to Parent such further information with respect to the calculations of the Allocation Certificate as Parent may reasonably request. The Allocation Certificate shall be deemed the definitive calculation of the amounts payable to the Equityholders and Option Holders, in connection with the Merger Consideration and in respect of each share of the Company Stockdisbursement thereof, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes except with respect to such Per Company Option Merger Payment; (x)
(A) adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Fully Diluted Shares Outstanding; Allocation Certificate for all such disbursements and (B) each Stockholder’s Pro Rata Escrow Share upon such disbursements shall have no responsibility or liability on account of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and type of Company Securities 16its acting in accordance with same.
Appears in 2 contracts
Sources: Merger Agreement (Formfactor Inc), Merger Agreement (Formfactor Inc)
Allocation Certificate. At least three (3) five Business Days prior to the Closing Date, the Company shall deliver to the Buyer Parent a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying signed by an executive officer of the Company on behalf of the Company Company, certifying as to the accuracy and its Subsidiaries that the following are good faith estimates completeness, in each case as of the Company: 15Closing, of:
(i) an estimated unaudited balance sheet (the “Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital Company as of the Closing Date substantially in the form of the Company Balance Sheet and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with Korean GAAP (except for the definition absence of Net Working Capitalfootnotes) on a basis consistent with and utilizing the same principles, without giving effect to practices and policies as those used in preparing the consummation of Company Balance Sheet;
(ii) the Transactions and subject to estimated cash on hand at the adjustments specified in the definition of Net Working Capital; Closing;
(iii) the Estimated Company Debt not paid aggregate Acquisition Expenses as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; ;
(viiv) the Company’s estimate aggregate Option Expenses as of aggregate Excess Cash; the Closing;
(viiv) a list of Sellers substantially in the form attached as Exhibit A, indicating (A) the identity and mailing address of each record Seller of Company Capital Stock, (B) the number and type of shares of Company Common Capital Stock and Company Preferred Stock held by each such record Seller, (by SeriesC) outstandinga calculation of the amount of Closing Payment payable to each such Seller at the Closing, (D) each Seller’s Allocable Share of the Cash Consideration, expressed as a percentage; (viii) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (BE) each StockholderSeller’s Pro Rata Escrow Allocable Share of the Escrow Amount and Expense Fund, and Pro Rata Sharethe Non-Selling Escrow Amount, expressed as a percentage and percentage; (F) each Seller’s Allocable Share of the Earnout Consideration (if earned pursuant to Section 1.7), expressed as a dollar amountpercentage; and (xiG) any required withholding with respect to each Seller; and
(vi) the identity information required on the form attached as Exhibit F for each Seller. With the Allocation Certificate, the Company shall give Parent (i) copies of all supporting work papers used in the preparation of the Closing Balance Sheet and mailing address the Allocation Certificate in order to allow Parent to confirm the accuracy and completeness thereof, and (ii) a certificate, signed by the Company and email address▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates, to LLC (the extent available) “Bank”), setting forth such parties’ binding agreement regarding the amount and timing of each record holder all payments due from or on behalf of the Company Securities and type the Sellers to the Bank, including without limitation amounts due under that certain engagement letter agreement dated as of Company Securities 16November 12, 2013 (the “Bank Certificate”). The Allocation Certificate, when approved by Parent after any corrections, shall be deemed the definitive calculation of the Consideration payable to each Seller in connection with the Purchase Transaction and the disbursement thereof, subject to any adjustment of the Consideration pursuant to Section 1.6 and the satisfaction of the conditions set forth in Section 1.7(b).
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Ixys Corp /De/)
Allocation Certificate. At least three (3) Business Days prior to the Initial Closing Date, the Company shall deliver to the Buyer Investor a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15following:
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency Surplus or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetDeficiency, which Estimated Closing Working Capital Statement shall be prepared as finally determined in accordance with Section 2.4(a);
(ii) (other than the definition of Net Working Capital, without giving effect Company Debt owed to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Senior Lender, all other Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance SheetInitial Closing, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the BuyerInvestor, indicating the amount necessary to discharge in full such Company Debt at the Initial Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at the Initial Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v);
(Aiii) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closingif any, together with a description and the amount of each element thereof; ;
(iv) the aggregate amount of all Transaction Expenses, together with a description and the amount of each element thereof;
(v) the aggregate amount of the Excess Operating Costs, if any;
(vi) the Company’s estimate of aggregate Excess CashAdjusted Cash Purchase Price; and
(vii) the number resulting Closing Cash Payment. The Company shall give Investor timely access to all supporting records and work papers used in preparation of shares the Allocation Certificate, which, when in form and substance satisfactory to and approved by Investor, shall be used for purposes of Company Common Stock and Company Preferred Stock (by Series) outstanding; the payments to be made at the Initial Closing.
(viii) The Company, Investor, and Company Parent agree to treat any adjustment to the Merger Consideration Adjusted Cash Purchase Price pursuant to this Section 2.4, if any, as an adjustment to the Initial Shares Purchase Price for all Tax purposes and shall take no position contrary thereto unless required to do so by applicable Tax Law pursuant to a determination as defined in respect of each share Section 1313(a) of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and type of Company Securities 16Code.
Appears in 2 contracts
Sources: Investment Agreement (Ascend Wellness Holdings, LLC), Investment Agreement
Allocation Certificate. At least three (3) Business Days prior to the Initial Closing Date, the Company shall deliver to the Buyer Investor a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15following:
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency Surplus or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetDeficiency, which Estimated Closing Working Capital Statement shall be prepared as finally determined in accordance with Section 2.4(a);
(ii) other than the definition of Net Working Capital, without giving effect Company Debt owed to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Senior Lender, all other Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance SheetInitial Closing, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the BuyerInvestor, indicating the amount necessary to discharge in full such Company Debt at the Initial Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at the Initial Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v);
(Aiii) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closingif any, together with a description and the amount of each element thereof; ;
(iv) the aggregate amount of all Transaction Expenses, together with a description and the amount of each element thereof;
(v) the aggregate amount of the Excess Operating Costs, if any;
(vi) the Company’s estimate of aggregate Excess CashAdjusted Cash Purchase Price; and
(vii) the number resulting Closing Cash Payment. The Company shall give Investor timely access to all supporting records and work papers used in preparation of shares the Allocation Certificate, which, when in form and substance satisfactory to and approved by Investor, shall be used for purposes of Company Common Stock and Company Preferred Stock (by Series) outstanding; the payments to be made at the Initial Closing.
(viii) The Company, Investor, and Company Parent agree to treat any adjustment to the Merger Consideration Adjusted Cash Purchase Price pursuant to this Section 2.4, if any, as an adjustment to the Initial Shares Purchase Price for all Tax purposes and shall take no position contrary thereto unless required to do so by applicable Tax Law pursuant to a determination as defined in respect of each share Section 1313(a) of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and type of Company Securities 16Code.
Appears in 2 contracts
Sources: Investment Agreement (MedMen Enterprises, Inc.), Investment Agreement
Allocation Certificate. At least three (3) Business Days prior to On the Closing Date, the Company shall deliver to the Buyer Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the CompanyCompany certifying, setting forth and certifying on behalf in each case as of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the Closing, (A) the Net Working Capital Deficiency or identity of each record holder of Company Common Shares (other than Company Restricted Stock) and the number of Company Common Shares held by each such Stockholder; (B) the amount identity of each record holder of Company Preferred Shares and the number of Company Preferred Shares held by which each such Stockholder; (C) the Net Working identity of each record holder of a Participating Stock Right, the number and type of Company Capital is greater than or equal to Shares covered by such Participating Stock Rights held by such holder, the Net Working exercise prices and vesting schedules thereof, the number and type of Company Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and Shares subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid each such Participating Stock Right that will be exercisable as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and whether such Participating Stock Right is intended to be qualified as an “incentive stock option” under Section 422 of the Code; (D) the identity of each record holder of Company Restricted Stock, the number of Company Common Shares held by such Stockholder and the amount of each element vesting schedules thereof; (viE) the Company’s estimate address of aggregate Excess Cashrecord of each holder of Company Capital Shares, each holder of Participating Stock Rights and each holder of Company Restricted Stock; (vii) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; (viiiF) the Merger Consideration and Escrow Amount allocable to each such holder; and (G) the amounts required to be deducted and withheld (other than in respect of backup withholding) from the consideration otherwise payable to each share of such holder with respect to the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) payments or any other Tax withholding obligation in respect of each In-the-Money the Merger or the exercise or settlement of any Company OptionStock Right or the vesting of restricted stock under the Code or any other Tax Law, which Allocation Certificate when approved by Parent shall be deemed the Per Company Option definitive allocation of Merger Payment (each paymentConsideration among the Participating Holders in accordance with the Merger and the disbursements thereof, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes including with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense FundAmount. In the event of a Closing Indebtedness Payment or that Parent elects to pay cash in lieu of shares of Parent Common Stock in accordance with Section 1.6, and Pro Rata Sharein completing the Allocation Certificate the parties may, expressed as a percentage and a dollar amount; and (xi) by mutual written agreement, make adjustments in the identity and mailing address (and email address, Allocation Certificate to the extent available) of each record holder necessary to achieve the intent of the Company Securities and type of Company Securities 16conversion formulas set forth in this Section 1.6.
Appears in 1 contract
Sources: Merger Agreement (Red Hat Inc)
Allocation Certificate. At least three (3a) Business Days Prior to the date of the Closing, the Company has prepared and delivered to Parent a draft of the Allocation Certificate that the Company anticipates in good faith is to be delivered by the Company to Parent immediately prior to the Closing, and immediately prior to the Closing Date, the Company shall deliver to the Buyer Parent a certificate signed by the President and Chief Executive Officer of the Company (the “Allocation Certificate”) signed by the Chief Financial Officer ), which Allocation Certificate shall set forth, as of the CompanyClosing Date and immediately prior to the First Effective Time, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15following:
(i) an estimated Closing Balance Sheetwith respect to each Company Stockholder: (1) the name and mailing address and/or e-mail address of each Company Stockholder; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A2) the Net Working Capital Deficiency or number and type of shares of Company Common Stock held by each such Company Stockholder; (B3) the amount respective certificate number(s) representing such shares of Company Common Stock; (4) the Pro Rata Share of each Company Stockholder; (5) the Parent Common Stock Payment Shares and the Parent Preferred Stock Payment Shares issuable to each Company Stockholder upon, and by which the Net Working Capital is greater than or equal to the Net Working Capital Targetvirtue of, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject Closing (for clarity, not including any of the Holdback Shares that may be issued to the adjustments specified in the definition of Net Working CapitalCompany Stockholders); (iii6) the Estimated Holdback Shares issuable to each Company Debt not paid Stockholder, both prior to and after the mandatory conversion of Parent Convertible Preferred Stock into shares of Parent Common Stock pursuant to the provisions of the Certificate of Designation upon the approval of the Preferred Stock Conversion Proposal by the Required Parent Stockholder Vote at the Parent Stockholders’ Meeting; and (7) whether such Company Stockholder has delivered a Holder Questionnaire and if such Company Stockholder is an Accredited Investor;
(ii) with respect to the Company Warrants: (1) the name and mailing address and/or e-mail address of each holder of each Company Warrant; (2) the number and type of shares of Company Common Stock underlying each Company Warrant as of immediately prior to the First Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv3) the Company’s estimate issuance date and the expiration date of Transaction Expenses not paid each Company Warrant; (4) the exercise price(s) per share of each Company Warrant as of immediately prior to the First Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vi) the Company’s estimate of aggregate Excess Cash; (vii5) the number of shares of Parent Common Stock issuable upon exercise of each Parent Common Stock Assumed Company Warrant, the number of shares of Parent Convertible Preferred Stock issuable upon exercise of each Parent Preferred Stock Assumed Company Warrant, and the exercise price per share of each Parent Common Stock Assumed Company Warrant and each Parent Preferred Stock Assumed Company Warrant.
(b) For the purposes of determining the value of the shares of Parent Common Stock and Company Parent Convertible Preferred Stock (by Series) outstanding; (viii) included in the Merger Consideration and in respect of (including the Holdback Shares), each share of Parent Common Stock shall be deemed to have a cash or dollar value equal to the Company StockParent Closing Price (subject to proportionate and equitable adjustment upon any stock split, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Optionstock dividend, the Per Company Option Merger Payment (each paymentreverse stock split, for avoidance of doubtreclassification, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee recapitalization or payroll Taxes other similar event with respect to the Parent Common Stock at any time after the date of this Agreement), and each share of Parent Convertible Preferred Stock shall be deemed to have a cash or dollar value equal to the product of the number of shares of Parent Common Stock into which such Per Company Option Merger Payment; share of Parent Convertible Preferred Stock is convertible (xdisregarding and without taking into account any provision of the Certificate of Designation that limits or restricts the right of the holder of such share of Parent Convertible Preferred Stock to convert such share of Parent Convertible Preferred Stock into shares of Parent Common Stock) multiplied by the Parent Closing Price (subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split, reclassification, recapitalization and other similar event with respect to the Parent Common Stock at any time after the date of this Agreement).
(Ac) The Parties agree that Parent and Merger Subs shall be entitled to rely on the Fully Diluted Shares Outstanding; Allocation Certificate in making payments under this Section 1 and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fundany other payments pursuant to this Agreement, and Pro Rata Share, expressed as a percentage Parent and a dollar amount; and (xi) Merger Subs shall not be responsible for the identity and mailing address (and email address, to calculations or the extent available) of each record holder of the Company Securities and type of Company Securities 16determinations regarding such calculations in such Allocation Certificate.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Leap Therapeutics, Inc.)
Allocation Certificate. At least three (3) Business Days prior to On or before the Closing DateEffective Time, the Company shall deliver to the Buyer IntraLinks a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, spreadsheet setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15forth:
(i) an estimated unaudited consolidated balance sheet (the “Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital Company as of the Effective Time substantially in the form of the Company Balance Sheet and prepared in accordance with GAAP (except for the absence of footnotes) on a basis consistent with and utilizing the same principles, practices and policies as those used in preparing the Company Balance Sheet;
(ii) the aggregate Acquisition Expenses as of the Closing, specifically identifying (A) the Acquisition Expenses that have already been paid prior to the Closing together with a description and the amount of each element thereof and (B) the Acquisition Expenses that have not been paid prior to the Closing together with a description and the amount of each element thereof (the Acquisition Expenses described in (B), the “Unpaid Acquisition Expenses”);
(iii) the aggregate Indebtedness of the Company and an estimate the Subsidiaries as of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetClosing, which Estimated Closing Working Capital Statement shall be prepared in accordance together with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and the amount for of each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v);
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof thereof, and (B) any Change in Control Payments that are due and payable in connection with the ClosingClosing (the “Closing Change in Control Payments”), together with a description and the amount of each element thereof; thereof and the wire instructions for each Person to whom such a Change in Control Payment shall be due and payable in connection with the Closing;
(v) the aggregate Cash as of the Closing (the “Closing Cash”);
(vi) the Company’s estimate of aggregate Excess Cash; PSA Amount;
(vii) the calculation of the Merger Consideration, the number of Fully Diluted Common Shares, the Per Share Common Merger Consideration, the Aggregate Option Exercise Price, the Aggregate Option Cancellation Amount and the Aggregate Bonus Amount;
(viii) (A) the identity and mailing address of each Stockholder and the number and type of shares of Company Common Stock and share certificate numbers held by each such Stockholder, (B) the identity and mailing address of record of each holder of Company Stock Rights, the number of shares of Company Common Stock subject to the Company Stock Rights held by such holder, the exercise prices and vesting schedules thereof, the number and type of shares of Company Preferred Common Stock subject to each Company Stock Right that will be exercisable as of the Closing, and whether such Company Stock Right is qualified as an “incentive stock option” under Section 422 of the Code, the number of Company Options and the number of Lapsed Options, and (by SeriesC) outstanding; the vesting schedule with respect to each Restricted Share;
(viiiix) the amount of: (A) the Merger Consideration and in respect of payable to each share Stockholder without reduction for such Stockholder’s Pro Rata Share of the Company Stock, the Per Share Net Merger Consideration Holdback Amount; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employerMerger Consideration to be paid to each Stockholder net of such Stockholder’s portion Pro Rata Share of the applicable employee or payroll Taxes with respect to such Per Company Option Merger PaymentHoldback Amount; (x)
(A) the Fully Diluted Shares Outstanding; and (BC) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata ShareHoldback Amount, expressed as a percentage dollar amount and as a dollar amountpercentage; (D) any required withholding with respect to each Stockholder; (E) with respect to each holder of vested Company Options, the Option Cancellation Amount payable to such holder together with any required Tax withholding with respect to such Stockholder and the payroll Taxes attributable thereto; and (xiF) with respect to each recipient of a portion of the Aggregate Bonus Amount, the name of such recipient and amount of such bonus payable to such recipient, together with any required Tax withholding with respect to such recipient and the payroll Taxes attributable thereto; and
(A) the identity and mailing address of each Noteholder, and the principal amount and issuance date of each Note held by such Noteholder, (B) the aggregate Note Payout Amount, (C) the portion of the Note Payout Amount payable to each Noteholder in respect of each Note held by such Noteholder, and email address(D) any required withholding with respect to each Noteholder, and the Company shall, on the Closing Date, deliver a certificate (such certificate and the items set forth in this Section 1.6(e) being collectively referred to as the “Allocation Certificate”), signed by the Company’s Chief Executive Officer and Chief Operating Officer certifying as to the extent available) accuracy and completeness, in each case as of the Closing, of each record holder of the items set forth on the Allocation Certificate in conformity with the requirements of this Section 1.6(e). The Company Securities shall give IntraLinks timely access to all supporting workpapers used in the preparation of the Closing Balance Sheet and type the Allocation Certificate, which Allocation Certificate, when in form and substance satisfactory to and approved by IntraLinks, shall be deemed the definitive calculation of the Note Payout Amount payable to the Noteholders and Merger Consideration payable to the Stockholders and holders of Company Securities 16Stock Rights in connection with the Merger and the disbursement thereof.
Appears in 1 contract
Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “"Allocation Certificate”") of the Company signed by Seller and the Chief Executive Officer and the Chief Financial Officer of the Company, setting forth and Company certifying on behalf of the Company as to the accuracy and its Subsidiaries that the following are good faith estimates completeness, in each case as of the Company: 15Closing, of:
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an Company's estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal aggregate Acquisition Expenses, to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt extent not paid as of immediately prior to the Effective TimeClosing, as set forth on the Closing Balance Sheet, including together with a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable made in connection with the Closing; (v);
(Aii) the Company's estimate of the aggregate amount Indebtedness of all Change in Control Payments, together with a description the Company and the amount Subsidiaries to the extent not paid as of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; , together with payoff letters in form and substance reasonably satisfactory to Buyer with respect to each item of Indebtedness indicating the amount necessary to discharge such Indebtedness in full at Closing;
(iii) the estimated amount of Net Working Capital as of the Closing Date (the "Estimated Closing Net Working Capital"), and the Estimated Working Capital Adjustment, if any;
(iv) the Company's estimate of the aggregate Change in Control Payments to the extent not paid as of the Closing, together with a description and the amount of each element thereof and any related employer portion of employment Taxes attributable thereto, the aggregate amount of such Change in Control Payments subject to withholdings, and to the extent there are Change in Control Payments that are not subject to withholdings, the wire instructions and individual Change in Control Payment Amounts for each Person to whom a Change in Control Payment shall be due and payable on or after the Closing Date;
(v) the Company's estimate of the aggregate amount payable at Closing in respect of (a) each holder of the Company Phantom Units (each, a "Phantom Unitholder"), and (b) each holder of the Stock Appreciation Rights (each, a "SAR Holder"), including in each case, any related employer portion of employment Taxes attributable thereto;
(vi) the Company’s estimate calculation of aggregate Excess Cash; the Estimated Purchase Price;
(vii) the number amount of shares of Company Common Stock any required withholding (if any) with respect to Seller, each Phantom Unitholder and Company Preferred Stock (by Series) outstanding; each SAR Holder;
(viii) the Merger Consideration Company's estimate of the aggregate Other Payments, together with a description and in respect the amount of each share of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email addresselement thereof and, to the extent availableapplicable, the wire instructions for each Person to whom an Other Payment shall be due and payable following the Closing date; and
(ix) of each record holder wire instructions, mailing address and bank account information for Seller. The Company shall give Buyer timely access to all supporting workpapers used in the preparation of the Company Securities Estimated Closing Net Working Capital and type the Allocation Certificate, which Allocation Certificate, when approved by Buyer, shall be deemed the definitive calculation of Company Securities 16the Estimated Purchase Price payable in connection with the Transactions and the disbursement thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (PTC Inc.)
Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Buyer Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Financial Executive Officer of the Company, setting forth and Company certifying on behalf of the Company as to the accuracy and its Subsidiaries that the following are good faith estimates completeness, in each case as of the Company: 15Closing, of:
(i) an estimated unaudited consolidated balance sheet (the “Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital Company and the Subsidiaries as of the Closing Date substantially in the form of the Company Balance Sheet and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with GAAP (except for the definition absence of Net Working Capitalfootnotes) on a basis consistent with and utilizing the same principles, without giving effect to practices and policies as those used in preparing the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v);
(Aii) the aggregate amount Acquisition Expenses outstanding as of all Change in Control Paymentsthe Closing, together with a description and the amount of each element thereof and a payoff letter for all such Acquisition Expenses paid by the Company prior to the Closing;
(Biii) any the aggregate Indebtedness of the Company and the Subsidiaries as of the Closing in an amount equal to $0;
(iv) the aggregate Change in Control Payments that are due and payable in connection with as of the Closing, together with a description and the amount of each element thereof; , and, to the extent applicable, the wire instructions for each Person to whom a Change in Control Payment shall be due and payable on or after the Closing Date;
(v) [intentionally omitted ]
(vi) a good faith estimated statement of the Company’s estimate Working Capital (the “Estimated Initial Working Capital Statement”), calculated in the manner set forth on Exhibit F, setting forth the estimated Working Capital of aggregate Excess Cash; the Company as of the Closing (the “Estimated Closing Working Capital Amount”) and, based on such, the Company’s calculation of the Closing Date Merger Consideration;
(vii) the number of Fully Diluted Common Shares, the Per Share Merger Consideration and the Aggregate Option Cancellation Amount;
(viii) (x) the identity and mailing address of each record holder of Company Capital Stock and the number and type of shares of Company Capital Stock held by each such Stockholder and (y) the identity and mailing address of record of each holder of Company Stock Rights, the number of shares of Company Common Stock and and/or Company Preferred Stock (subject to the Company Stock Rights held by Series) outstanding; (viii) such holder, the Merger Consideration exercise prices and in respect vesting schedules thereof, the number and type of shares of Company Capital Stock subject to each share Company Stock Right that will be exercisable as of the Closing, and whether such Company Stock, Stock Right is qualified as an “incentive stock option” under Section 422 of the Per Share Net Merger Consideration Code; and
(ix) the amount of (Av) in respect of the Closing Date Merger Consideration payable to each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price Holder without reduction for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each StockholderHolder’s Pro Rata Share of the Escrow Amount or Expense Escrow Amount; (w) the Closing Date Merger Consideration to be paid to each Holder net of such Holder’s Pro Rata Share of the Escrow Amount and Expense Fund, and Escrow Amount; (x) each Holder’s Pro Rata ShareShare of the Escrow Amount and Expense Escrow Amount, expressed as a percentage dollar amount and as a percentage; (y) any required withholding (if any) with respect to each Holder and (z) with respect to each holder of vested Company Options, (1) the Option Cancellation Amount payable to such holder without reduction for such holder’s Pro Rata Share of the Escrow Amount or Expense Escrow Amount; (2) the Option Cancellation Amount to be paid to such holder net of such Holder’s Pro Rata Share of the Escrow Amount and Expense Escrow Amount; (3) such holder’s Pro Rata Share of the Escrow Amount and Expense Escrow Amount, expressed as a dollar amountamount and as a percentage of the Option Cancellation Amount; and (xi4) any required withholding (if any) with respect to such holder’s Option Cancellation Amount. The Company shall give Parent timely access to all supporting work papers used in the identity and mailing address (and email address, to the extent available) of each record holder preparation of the Company Securities Closing Balance Sheet and type of Company Securities 16the Allocation Certificate.
Appears in 1 contract
Allocation Certificate. At least three two (32) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Financial Executive Officer of the CompanyCompany certifying as to the accuracy and completeness, setting forth and certifying on behalf in each case as of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15Closing, of:
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company Company, as of 11:59 PM Eastern time on the Closing Date, and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetAdjustment Amount based thereon, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working CapitalGAAP, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; attached as Schedule 1.1(A), is a calculation of Net Working Capital as though November 30, 2013 were the Closing Date;
(iiiii) (A) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; , and (ivB) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and thereof;
(iii) the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
Company’s calculation of (A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and Cash Purchase Price; (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vi) the Company’s estimate of aggregate Excess Cash; (vii) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; (viii) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Merger Consideration, the Per Share Closing Consideration and the Per Share Net Merger Consideration Closing Consideration; (ix) (AC) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each paymentConsideration, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger PaymentClosing Consideration and the Per Company Option Net Closing Consideration; (x)
D) in respect of the SVB Warrant, the SVB Warrant Merger Consideration, the SVB Warrant Closing Consideration and the SVB Warrant Net Closing Consideration; (AE) the Fully Diluted Shares Outstanding; , and (BF) each StockholderSecurityholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, Fund expressed as a percentage and a dollar amountpercentage; and and
(xiiv) (A) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities Securities, and type (B) wire instructions for the Company. The Company shall give the Buyer timely access to all supporting records and work papers used in preparation of Company Securities 16the Estimated Closing Working Capital Statement and the Allocation Certificate, which, when approved by the Buyer, shall be used for purposes of the payments to be made at Closing, though remain subject to adjustment pursuant to Section 1.7(c) (Post-Closing True-Up).
Appears in 1 contract
Sources: Exhibit Agreement (PTC Inc.)
Allocation Certificate. At least three two (32) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Financial Executive Officer of the Company, setting forth and certifying on behalf as to the accuracy and completeness, in each case as of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15Closing, of:
(i) an estimated unaudited consolidated balance sheet (the “Closing Balance Sheet; ”) of the Company as of 11:59 P.M. Eastern Time on the date one day prior to the Closing Date substantially in the form of the Interim Balance Sheet and prepared in accordance with GAAP (except for the absence of footnotes);
(ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company Company, as of 11:59 PM Eastern Time on the date one day prior to the Closing Date, and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Targetbased thereon, if any, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working CapitalGAAP, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; ;
(iii) the Estimated Company Debt (including any Deferred Compensation) not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is DB3/200169974.12 secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; ;
(iv) the amount of the Aggregate Preferred Dividend as of immediately prior to the conversion of the Preferred Units into Class A Units;
(v) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; ;
(v)
vi) (A) the aggregate amount of all Change in Control Payments, if any, together with a description and the amount of each element thereof thereof, including any related employer portion of employment taxes attributable thereto, and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vi) , including any related employer portion of employment taxes attributable thereto, and the Company’s estimate of aggregate Excess Cash; wire instructions for each Person to whom such a Change in Control Payment shall be due and payable in connection with the Closing;
(vii) the number aggregate Unrestricted Cash as of shares the Effective Time and the amount of Company Common Stock and Company Preferred Stock (by Series) outstanding; the Dividend Prepayment, if any;
(viii) (A) the number of Class A Units and Class B Units outstanding as of immediately prior to the Effective Time, and (B) the number of Preferred Units outstanding as of immediately prior to the Effective Time on an as converted to Class A Units basis;
(A) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Net Merger Consideration Consideration; (ix) (AB) in respect of each In-the-Money Company OptionClass A Unit, the Per Company Option Unit Merger Payment Consideration and the Per Unit Net Merger Consideration; (C) in respect of each paymentPreferred Unit, for avoidance of doubt, to be net the Per Series A Unit Merger Consideration and the Per Unit Net Merger Consideration; (D) in respect of the BF Warrant, the Per BF Warrant Consideration and the Per Unit Net Merger Consideration; (E) in respect of the Intel Warrant, the Per Intel Warrant Consideration and the Per Unit Net Merger Consideration; (F) in respect of each Class B Unit, the Per Class B Unit Merger Consideration and the Per Unit Net Merger Consideration; and (G) in respect of each Company Phantom Unit, the Per Phantom Unit Merger Consideration;
(x) with respect to each holder of Class B Units and each Phantom Unitholder, (A) the Threshold Amount applicable exercise price for such In-the-Money Company Option) thereto and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; Aggregate Exercise Amount, if any;
(x)
xi) (A) the Fully Diluted Shares Outstanding; and (B) each StockholderEscrow Participant’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, Fund expressed as a percentage and a dollar amount; percentage, and (xiB) each Securityholder’s Earn-Out Share Percentage; and
(xii) (A) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and Company Phantom Units and type of unit and certificate numbers held by each such Securityholder, and (B) wire instructions for the Company. The Company Securities 16shall give Buyer and Parent commercially reasonable access to all supporting records and work papers used in preparation of the Closing Balance Sheet, Estimated Closing Working Capital Statement and Allocation Certificate, which, when in form and substance satisfactory to and approved by Buyer, shall be used for purposes of the payments to be made at Closing, though remaining subject to adjustment pursuant to Section 1.7(c) (Post-Closing True-Up). DB3/200169974.12
Appears in 1 contract
Sources: Merger Agreement (PTC Inc.)
Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15:
(i) an estimated Closing Balance Sheet; ;
(ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetSurplus, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; ;
(iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; ;
(iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; ;
(v)) the Estimated Pre-Closing Taxes not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof;
(vi) (A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; ;
(vivii) the Company’s estimate of aggregate Excess Closing Cash; (vii) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; ;
(viii) the Company’s estimate of the Closing Cash Merger Consideration and in respect of each share of the Company StockClosing Share Merger Consideration, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; applicable portion of the Closing Cash Merger Consideration and the Closing Share Merger Consideration payable to each Member, and (B) each StockholderMember’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and
(ix) the (A) identity, mailing address and email address of each Member, (B) the Ownership Interest held by each Member and (xiC) wire instructions for each Member. The Company shall give the identity Buyer timely reasonable access to all supporting records and mailing address work papers used in preparation of the Estimated Closing Working Capital Statement and Allocation Certificate, which, when in form and substance reasonably satisfactory to and approved by the Buyer, shall be used for purposes of the payments to be made at Closing, though remain subject to adjustment pursuant to Section 1.7(b) (and email address, Post-Closing True-Up). The Allocation Certificate shall be subject to the extent availableBuyer’s approval prior to the Closing (not to be unreasonably withheld, conditioned or delayed) of each record holder and shall be prepared in accordance and full compliance with the terms and conditions of the Company’s organizational documents then in effect and any other applicable Contracts governing the distribution of equity proceeds to any Member, and the Parent, the Buyer and the Surviving Company Securities shall each be entitled to rely upon and type shall incur no liability as a result of its reliance on the Allocation Certificate delivered by the Company Securities 16(or any updates or supplements thereto delivered by the Company prior to the Closing).
Appears in 1 contract
Allocation Certificate. At least three one (31) Business Days Day prior to the Closing Date, the Company shall deliver to the Buyer Parent a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying Holder Representative (on behalf of the Company Holders) and its Subsidiaries that the following are good faith estimates Chief Executive Officer of the Company: 15Company certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) an the estimated consolidated unaudited balance sheet (the “Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital Company as of 11:59 PM Eastern time on the day prior to the Closing Date substantially in the form of the Company Balance Sheet and an estimate prepared in accordance with GAAP (except for the absence of footnotes) on a basis consistent with and utilizing the same principles, practices and policies as those used in preparing the Company Balance Sheet;
(ii) the aggregate Acquisition Expenses as of the Closing, specifically identifying (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not Acquisition Expenses that have already been paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof (the “Prepaid Acquisition Expenses”) and whether such Prepaid Acquisition Expenses were paid or advanced by the Parent and (B) any Change in Control Payments the Acquisition Expenses that are due and payable in connection with have not been paid prior to the Closing, Closing together with a description and the amount of each element thereof; ;
(iii) the aggregate Cash as of the Closing (the “Closing Cash”);
(iv) the aggregate Indebtedness of the Company as of the Effective Time;
(v) the calculation of the Closing Consideration, the number of Fully Diluted Common Shares, the Per Share Common Closing Consideration with respect to each outstanding share of Company Common Stock and the number of Company Convertible Notes;
(vi) (A) the Company’s estimate identity and mailing address of aggregate Excess Cash; each record holder of Company Common Stock and the number and type of shares of Company Common Stock and share certificate numbers held by each such Company Stockholder and (viiB) the identity and mailing address of record of the holder of the Company Convertible Note, the number of shares of Company Common Stock subject to the Company Convertible Note held by such holder, the exercise price thereof, and the number and type of shares of Company Preferred Common Stock subject to the Company Convertible Note that will be exercisable as of the Closing;
(by Seriesvii) outstandingthe amount of: (A) the Closing Consideration payable to each Holder (rounded to the nearest number of whole Parent Shares); (B) the Milestone Consideration payable to each Holder (assuming payment in full in accordance with this Agreement and rounded to the nearest number of whole Parent Shares) and (C) the required withholding (if any) with respect to each Holder; and
(viii) the Pro Rata Share of each Holder. The Company shall give the Parent timely access to all supporting workpapers used in the preparation of the Closing Balance Sheet and the Allocation Certificate, which Allocation Certificate, when in form and substance satisfactory to and approved by the Parent, shall be deemed the definitive calculation of the Merger Consideration payable to the Holders at the Closing in connection with the Merger and in respect of each share of the Company Stockdisbursement thereof (subject, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email addresshowever, to the extent available) of each record holder of the Company Securities and type of Company Securities 16Parent’s indemnification rights under Section 7.2(d)).
Appears in 1 contract
Sources: Merger Agreement (Matinas BioPharma Holdings, Inc.)
Allocation Certificate. At Holdco shall prepare and deliver to Pubco at least three ten (310) Business Days prior to the Closing Date, the Company shall deliver to the Buyer Date a certificate signed by the Chief Financial Officer of Holdco in a form reasonably acceptable to Pubco (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid as of immediately prior to the First Effective Time)
(a) each holder of Holdco Common Stock, Holdco Voting Preferred Stock, Holdco Non-Voting Preferred Stock, Holdco Warrants and Holdco Options; (b) such holder’s name; (c) the number and type of Holdco Common Stock, Holdco Voting Preferred Stock, Holdco Non-Voting Preferred Stock and/or Holdco Warrants held and/or underlying Holdco Options as set forth on of the Closing Balance Sheet, including a description and amount immediately prior to the First Effective Time for each element thereofsuch holder; (d) the number and type of shares of Pubco Shares and Pubco Non-Voting Shares to be issued to such holder, if anyor to underlie any Exchanged Option to be issued to such holder, together pursuant to this Agreement and calculated in accordance with payoff lettersthe Per Share Merger Consideration in respect of Holdco Common Stock, Holdco Voting Preferred Stock, Holdco Non-Voting Preferred Stock and/or Holdco Warrants or in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge accordance with Section 3.02(a)(vi) in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking respect of Holdco Options held by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the First Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(Ae) the aggregate amount of all Change in Control PaymentsExchange Ratio, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vif) the Company’s estimate of aggregate Excess Cash; Discounted Exchange Ratio, (viig) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; (viii) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Net Merger Consideration ; Consideration, (ixh) (A) in respect of each In-the-Money Company Optionholder’s Exchanged Options, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (Bi) each calculation underlying or related to the applicable employer’s portion of the applicable employee or payroll Taxes foregoing, and (j) with respect to each holder of a Holdco Option that is a Holdco service provider, whether such Per Company Option Merger Payment; (x)
(A) holder has terminated continuous service and if so, the Fully Diluted Shares Outstanding; date of such termination and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount reason therefor. Holdco shall incorporate any comments provided by Pubco in good faith to the Allocation Certificate and Expense Fundany drafts thereof, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, Allocation Certificate shall be in mutually acceptable form prior to the extent available) of each record holder of the Company Securities and type of Company Securities 16Closing.
Appears in 1 contract
Allocation Certificate. At least three four (34) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company, setting forth and Company certifying on behalf of the Company as to the accuracy and its Subsidiaries that the following are good faith estimates completeness, in each case as of the Company: 15Closing, of:
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal aggregate Acquisition Expenses, to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt extent not paid as of immediately prior to the Effective TimeClosing, together with a list of each payee and the amount of each element thereof;
(ii) the aggregate Indebtedness of the Company and the Subsidiaries as set forth on of the Closing Balance SheetClosing, including a description separate listing of the aggregate amount of Permitted Indebtedness, together with a list of each payee and the amount for of each element thereof, if any;
(iii) the aggregate Change in Control Payments as of the Closing, together with payoff letters, in form a list of each payee and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and and, to the extent not subject to tax withholdings, the wire instructions for each Person to whom such a payment Change in respect thereof Control Payment shall be due and payable in connection with on or after the Closing; (v)Closing Date;
(Aiv) the aggregate amount a listing of all Change in Control Historic Severance Payments, together with a description list of each payee and the amount of each element thereof and (B) any Change in Control Payments that are and, to the extent not subject to tax withholdings, wire instructions for each Person to whom an Historic Severance Payment shall be due and payable following the Closing Date;
(v) the aggregate amount of all M▇▇▇▇▇ Payments as of the Closing Date and, to the extent applicable, wire instructions for the M▇▇▇▇▇ Entities entitled to receipt thereof;
(vi) the aggregate Canadian Consumption Tax;
(vii) the calculation of the Purchase Price, the number of Fully Diluted Common Shares, the Estimated Per Common Share Payment Amount, the number of shares of Series A Preferred Stock, the Estimated Series A Share Payment Amount, the number of shares of Series B Preferred Stock and the Estimated Series B Share Payment Amount;
(viii) the allocation of the Purchase Price, inclusive of the Escrow Amount, among the Sellers with respect to the Shares owned by each Seller (on a per share, per certificate and aggregate basis);
(ix) each Seller’s Pro Rata Share of the Escrow Amount (expressed as a dollar amount and as a percentage);
(x) the allocation of the Purchase Price, net of the Escrow Amount, among the Sellers with respect to the Shares owned by each Seller (on a per share, per certificate and aggregate basis);
(xi) the amount of any required withholding (if any) with respect to each Seller; and
(xii) wire instructions, mailing address and bank account information for each Seller. The Company shall give Buyer timely access to all supporting workpapers used in the preparation of the Estimated Closing Balance Sheet, the Allocation Certificate and the Closing Financials Certificate. Buyer shall review the Estimated Closing Balance Sheet, the Allocation Certificate and the Closing Financials Certificate promptly, and in any event within three (3) Business Days of receipt thereof. Once the Allocation Certificate is reviewed by B▇▇▇▇ and certified to by the Company, it shall be deemed the definitive calculation by each of the Sellers of the Purchase Price payable in connection with the Closing, together with a description Transactions and the amount of each element disbursement thereof; (vi) the Company’s estimate of aggregate Excess Cash; (vii) the number of shares of Company Common Stock , subject to adjustment only as provided in Sections 1.3, 1.5 and Company Preferred Stock (by Series) outstanding; (viii) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and type of Company Securities 161.6.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parametric Technology Corp)
Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the The Company shall deliver have delivered to the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the CompanyCompany certifying, setting forth and certifying on behalf in each case as of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the Closing, (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount identity of each element thereof record holder of Company Common Stock and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vi) the Company’s estimate of aggregate Excess Cash; (vii) the number of shares of Company Common Stock and held by each such Company Preferred Stock (by Series) outstandingStockholder; (viii) the Merger Consideration and in respect of each share of the Company Stock, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to the extent available) of each record holder of a Company Option, the Company Securities number and type of Company Securities 16Capital Stock covered by such Company Option held by such holder, the exercise prices and vesting schedules thereof, the number and type of Company Capital Stock subject to each such Company Option that will be exercisable as of the Closing, and whether such Company Option is intended to be qualified as an “incentive stock option” under Section 422 of the Code; (C) the identity of each record holder of Unvested Company Shares, the number of Company Common Stock held by such Company Stockholder and the vesting schedules thereof; (D) the address of record of each holder of Company Capital Stock, each holder of Company Options and each holder of Unvested Company Shares; (E) the Total Consideration, Closing Cash Amount, Vested Option Value, Unvested Company Share Amount, Group A Unvested Option Value, Group B Unvested Option Value, such number of shares of Buyer Preferred Stock issuable to a Group B Holder, Group B Cash Payment, Cash for Tax with respect to Group B Holders, and Escrow Amount allocable to each such holder; and (F) the amounts required to be deducted and withheld (other than in respect of backup withholding) from the consideration otherwise payable to each such holder with respect to the payments or any other Tax withholding obligation in respect of the Merger or the exercise or settlement of any Company Option or the vesting of restricted stock under the Code or any other Tax Law, which Allocation Certificate when approved by Buyer shall be deemed the definitive allocation of Total Consideration among the Participating Holders and holders of Unvested Company Options in accordance with the Merger and the disbursements thereof, including with respect to the Escrow Amount.
Appears in 1 contract
Allocation Certificate. At least three two (32) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company as to the accuracy and its Subsidiaries that the following are good faith estimates of the Company: 15completeness, in each case, of:
(i) an estimated Closing Balance Sheet; ;
(ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company Company, as of 11:59 PM Eastern Time on the date one day prior to the Closing Date, and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Targetbased thereon, if any, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; ;
(iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; ;
(iv) the Company’s estimate of the Company Long-Term Deferred Revenue, as set forth on the Closing Balance Sheet;
(v) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; ;
(v)
vi) (A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; thereof and the wire instructions for each Person to whom such a Change in Control Payment shall be due and payable in connection with the Closing;
(vivii) the Company’s estimate of aggregate Excess Unrestricted Cash; ;
(viiviii) the number of shares of Company Common Stock, Company Series A Stock, Company Series B Stock and Company Preferred Series C Stock outstanding;
(by Seriesix) outstanding; (viiiA) the Merger Consideration and Consideration; (B) in respect of each share of the Company Common Stock, the Per Share Net Merger Consideration Consideration; (ix) (AC) in respect of each In-the-Money share of Company Series A Stock, the Per Share Series A Merger Consideration, the Series A Liquidation Preference and the Per Share Net Merger Consideration; (D) in respect of each share of Company Series B Stock, the Per Share Series B Merger Consideration, the Series B Liquidation Preference and the Per Share Net Merger Consideration; and (E) in respect of each share of Company Series C Stock, the Per Share Series C Merger Consideration, the Series C Liquidation Preference and the Per Share Net Merger Consideration;
(x) (A) the Aggregate Exercise Amount; (B) in respect of each Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of Consideration and the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Net Merger PaymentConsideration (and the aggregate amounts thereof); (xC) in respect of each Company Common Warrant, the Company Common Warrant Merger Consideration and the Company Common Warrant Net Merger Consideration (and the aggregate amounts thereof); and (D) in respect of each Company Preferred Warrant, the Company Preferred Warrant Merger Consideration and the Company Preferred Warrant Net Merger Consideration (and the aggregate amounts thereof);
(xi) (A) the Fully Diluted Shares Outstanding; and (B) each StockholderSecurityholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, Fund expressed as a percentage and a dollar amount; and and
(xiA) the identity and mailing address (and email address, to the extent available) of each record holder of the Company Securities and type of Company Securities 16and certificate numbers (as applicable) held by each such Securityholder, (B) the identity and mailing address (and email address, to the extent available) of each recipient of an award under the Carve-Out Plan as set forth in the Carve-Out Allocation and the amount of such award, together with the amount of any required withholding (if any) with respect to each such recipient, and (C) wire instructions for the Company. The Company shall give the Buyer timely access to all supporting records and work papers used in preparation of the Closing Balance Sheet, Estimated Closing Working Capital Statement and Allocation Certificate, which, when in form and substance satisfactory to and approved by the Buyer, shall be used for purposes of the payments to be made at Closing, though remain subject to adjustment pursuant to Section 1.7(c) (Post-Closing True-Up).
Appears in 1 contract
Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15:
(i) an estimated Closing Balance Sheet; ;
(ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetSurplus, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; ;
(iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if anyand, together with for each item of Estimated Company Debt that is not Retained Debt, payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at the Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; ;
(iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v);
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; ;
(vi) the Company’s estimate of aggregate Excess Closing Cash; ;
(vii) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; (viii) the Merger Consideration and in respect of each share Company’s estimate of the Company StockClosing Cash Merger Consideration, the Per Adjustment Escrow Cash, the Adjustment Escrow Shares and the Net Closing Share Net Merger Consideration ; (ix) Consideration, and (A) in respect the number of each In-the-Money Units outstanding and the number of Units underlying outstanding Company OptionWarrants (based on a cashless exercise), the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect Closing Cash Merger Consideration and the Net Closing Share Merger Consideration payable to such Per Company Option Merger Payment; each Securityholder, (x)
(A) the Fully Diluted Shares Outstanding; and (BC) each StockholderSecurityholder’s Pro Rata Escrow Share of the Escrow Amount and Expense FundMilestone Shares expressed as a percentage, and (D) each Securityholder’s Pro Rata Share, Share of each of the Escrow Fund and the Expense Fund expressed as a percentage and a share or dollar amount, as applicable; and and
(xiviii) the (A) identity and mailing address (and email address, to the extent available) of each record holder Securityholder and (B) wire instructions for the Company. The Company shall give the Buyer timely access to all supporting records and work papers used in preparation of the Closing Balance Sheet, Estimated Closing Working Capital Statement and Allocation Certificate. The Company Securities shall, in good faith, take into consideration any comments to such documents made by Parent, which documents when final shall be used for purposes of the payments to be made at Closing, but shall remain subject to adjustment pursuant to Section 1.7(b) (Post-Closing True-Up). The Allocation Certificate shall be subject to the Buyer’s approval prior to the Closing (not to be unreasonably withheld, conditioned or delayed) and type shall be prepared in accordance and full compliance with the terms and conditions of the Company’s organizational documents then in effect and any other applicable Contracts governing the distribution of equity proceeds to any Securityholder, and the Parent, the Buyer and the Surviving Company Securities 16shall each be entitled to rely upon and shall incur no liability as a result of its reliance on the Allocation Certificate delivered by the Company (or any updates or supplements thereto delivered by the Company prior to the Closing).
Appears in 1 contract
Allocation Certificate. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the Buyer a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Company: 15:
(i) an estimated Closing Balance Sheet; ;
(ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital TargetSurplus, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; ;
(iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; ;
(iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; ;
(v)) the Estimated Pre-Closing Taxes not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof;
(vi) (A) the aggregate amount of all Change in Control Payments, together with a description and the amount of each element thereof and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; ;
(vivii) the Company’s estimate of aggregate Excess Closing Cash; (vii) the number of shares of Company Common Stock and Company Preferred Stock (by Series) outstanding; ;
(viii) the Company’s estimate of the Closing Cash Merger Consideration and in respect of each share of the Company StockClosing Share Merger Consideration, the Per Share Net Merger Consideration ; (ix) (A) in respect of each In-the-Money Company Option, the Per Company Option Merger Payment (each payment, for avoidance of doubt, to be net of the applicable exercise price for such In-the-Money Company Option) and (B) the applicable employer’s portion of the applicable employee or payroll Taxes with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; applicable portion of the Closing Cash Merger Consideration and the Closing Share Merger Consideration payable to each Stockholder, and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and
(ix) the (A) identity, mailing address and email address of each Stockholder, (B) the number of Shares held by each Stockholder and certificate numbers (as applicable) with respect to the Shares held by such Stockholder and (xiC) wire instructions for each Stockholder. The Company shall give the identity Buyer timely reasonable access to all supporting records and mailing address work papers used in preparation of the Estimated Closing Working Capital Statement and Allocation Certificate, which, when in form and substance reasonably satisfactory to and approved by the Buyer, shall be used for purposes of the payments to be made at Closing, though remain subject to adjustment pursuant to Section 1.7(b) (and email address, Post-Closing True-Up). The Allocation Certificate shall be subject to the extent availableBuyer’s approval prior to the Closing (not to be unreasonably withheld, conditioned or delayed) of each record holder and shall be prepared in accordance and full compliance with the terms and conditions of the Company’s organizational documents then in effect and any other applicable Contracts governing the distribution of equity proceeds to any Stockholder, and the Parent, the Buyer and the Surviving Company Securities shall each be entitled to rely upon and type shall incur no liability as a result of its reliance on the Allocation Certificate delivered by the Company Securities 16(or any updates or supplements thereto delivered by the Company prior to the Closing).
Appears in 1 contract
Allocation Certificate. At least three (3) Business Days prior to Upon the Closing Dateexecution of this Agreement, the Company shall deliver to Parent and the Buyer Stockholder Representative a certificate (the “Allocation Certificate”) signed by the Chief Financial Officer setting forth, as of the Company, setting forth and certifying on behalf of the Company and its Subsidiaries that the following are good faith estimates of the Companymost recent practicable date: 15
(i) an estimated Closing Balance Sheet; (ii) a statement (the “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Net Working Capital Deficiency or (B) the amount by which the Net Working Capital is greater than or equal to the Net Working Capital Target, which Estimated Closing Working Capital Statement shall be prepared in accordance with the definition of Net Working Capital, without giving effect to the consummation of the Transactions and subject to the adjustments specified in the definition of Net Working Capital; (iii) the Estimated Company Debt not paid as of immediately prior to the Effective Time, as set forth on the Closing Balance Sheet, including a description and amount for each element thereof, if any, together with payoff letters, in form and substance reasonably satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if any such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s estimate of Transaction Expenses not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be due and payable in connection with the Closing; (v)
(A) the aggregate amount of all Change in Control Payments, together with a description and the amount identity of each element thereof record holder of Company Capital Stock and (B) any Change in Control Payments that are due and payable in connection with the Closing, together with a description and the amount of each element thereof; (vi) the Company’s estimate of aggregate Excess Cash; (vii) the number of shares of Company Common Stock and and/or Company Preferred Stock held by each such Stockholder; (by Seriesii) outstandingthe identity of each holder of Company Options and Company Warrants and the number and type of shares of Company Capital Stock subject to each Company Option and Company Warrant; (iii) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) payable to each Company Securityholder pursuant to this Section 2.6; (iv) the amount of any required Tax withholding, if any, from the Merger Consideration (as adjusted pursuant to Section 2.11) to be paid to the Company Securityholders; (v) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be withheld from each Company Securityholder in establishing the Escrow Account; (vi) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be withheld from each Company Securityholder in establishing the Stockholder Representative Account; (vii) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be withheld from each Company Securityholder in establishing the Retention Account; (viii) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be paid to each Company Securityholder at Closing after deduction for the amounts set forth in (iv), (v), (vi) and in respect of each share of the Company Stock, the Per Share Net Merger Consideration (vii) above; (ix) the percentage of the Net Working Capital Adjustment to be paid to each Company Securityholder pursuant to Section 2.11(g); and (Ax) in respect the percentage of the Earnout Payment to be paid to each In-the-Money Company OptionSecurityholder following the Earnout Determination Date pursuant to Section 2.10. Between the date hereof and Closing, the Per Company Option Merger Payment shall provide Parent and the Stockholder Representative with one or more updates to the Allocation Certificate as necessary to reflect (each payment, for avoidance of doubt, to be net x) changes in the ownership of the applicable exercise price for Company Capital Stock during such In-the-Money Company Option) time and (By) any adjustments to the applicable employer’s portion Merger Consideration in accordance with the terms and provisions of this Agreement, and shall deliver a final Allocation Certificate at the Closing setting forth the matters described above as of the applicable employee or payroll Taxes Closing (the “Final Allocation Certificate”). Such Final Allocation Certificate shall be deemed the definitive allocation of the Merger Consideration payable to the Company Securityholders (except with respect to such Per Company Option Merger Payment; (x)
(A) the Fully Diluted Shares Outstanding; and (B) each Stockholder’s Pro Rata Escrow Share of the Escrow Amount and Expense Fund, and Pro Rata Share, expressed as a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, changes resulting from adjustments to the extent available) of each record holder of the Company Securities Merger Consideration under Section 2.8(g), Section 2.10, Section 2.11, Section 2.12 and type of Company Securities 16Article VII).
Appears in 1 contract