Closing Spreadsheet. (a) The Company shall prepare and deliver to Parent, not later than five (5) Business Days prior to the Closing Date a draft version, and not later than two (2) Business Days prior to the Closing Date, a final version of a spreadsheet (the “Closing Spreadsheet”) in form and substance reasonably satisfactory to Parent, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing: (i) an unaudited consolidated balance sheet of the Company as of the Closing prepared in accordance with the Accounting Principles; (ii) the calculation of: (A) the consolidated Working Capital of the Company as of the Closing (the “Closing Working Capital”); (B) the Closing Working Capital Shortfall, if any; (C) the aggregate amount of Indebtedness as of the Closing (the “Closing Indebtedness”), together with a breakdown thereof; and (D) the aggregate amount of all Transaction Expenses that are unpaid as of the Closing (the “Unpaid Transaction Expenses”), together with a breakdown thereof, in each case prepared in accordance with the Accounting Principles; (iii) the calculation of: (A) the Merger Consideration resulting from the amounts set forth in Section 1.9(a)(ii); (B) the Fully Diluted Shares; (C) the Per Share Merger Consideration, including the Per Share Cash Consideration and the Per Share Stock Consideration; and (D) each Indemnifying Party’s Pro Rata Portion; (iv) with respect to each Person who is a Stockholder immediately prior to the Effective Time: (A) the name and email address of such Stockholder; (B) the number, class and series of Shares held by such Stockholder (on a certificate-by-certificate basis and including certificate numbers); (C) the aggregate cash amount and aggregate number of shares of Parent Class A Common Stock payable and issuable, respectively, to such Stockholder pursuant to Section 1.6 before deduction of amounts to be contributed to the Expense Fund (on a certificate-by-certificate basis and in the aggregate); (D) the aggregate Pro Rata Portion of the Escrow Amount to be withheld in accordance with Section 1.8(f); (E) the aggregate Pro Rata Portion of the Expense Amount to be contributed to the Expense Fund from the consideration otherwise payable to such Stockholder pursuant to Section 1.6(a)(i); (F) the net cash amount to be paid to such Stockholder upon surrender of such Stockholder’s Certificate(s) in accordance with Section 1.6 (after deduction of any cash and stock amounts to be contributed to the Expense Fund with respect to the Shares held by such Stockholder); (G) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 4.15); (H) in the case of a Principal Stockholder, whether any Taxes are required to be withheld from the consideration that such Stockholder is entitled to receive pursuant to Section 1.6(a)(i); (I) with respect to any Shares that constitute “covered securities” within the meaning of Treasury Regulation Section 1.6045-1(a)(15), the cost basis of such Shares; and (J) such other information as is reasonably requested by the Exchange Agent to comply with IRS Form 1099-B or other Tax reporting requirements in connection with the transaction contemplated by this Agreement; (v) with respect to each Option (on an option-by-option basis) that is outstanding and unexercised as of immediately prior to the Closing: (A) the name and email address of record of the holder of such Option as of immediately prior to the Closing; (B) whether such holder is an employee, consultant, director or officer of the Company or any other Group Company; (C) the grant date of such Option; (D) whether such Option is an unvested Option or a vested Option; (E) the number of shares of Common Stock that are subject to such Option as of immediately prior to the Effective Time; (F) the exercise price per share applicable to such Option as of immediately prior to the Closing; (G) the vesting schedule (including the vesting commencement date and any acceleration provisions) applicable to such Option; (H) the expiration date of such Option; (I) whether such Option is intended to qualify as an “incentive stock option” (as defined in Section 422 of the Code); and (J) with respect to Options subject to Section 1.6(a)(ii)(D) (1) the resulting number of shares of Parent Class A Common Stock to be subject to such Option immediately after the Effective Time pursuant to Section 1.6(a)(ii); and (2) the resulting exercise price per share of such Option immediately after the Effective Time pursuant to Section 1.6(a)(ii); (vi) with respect to each Warrant (after giving effect to any exercises or deemed exercises of Warrants prior to the Closing): (A) the name and email address of record of the holder of such Warrant as of immediately prior to the Closing; (B) the number, class and series of shares in the capital of the Company that are subject to such Warrant (on a warrant-by-warrant basis) and the number of such shares that are vested as of immediately prior to the Closing; (C) the exercise price applicable to such Warrant as of immediately prior to the Closing; (D) the aggregate Pro Rata Portion of the Escrow Amount to be withheld in accordance with Section 1.8(f); (E) the aggregate cash amount and aggregate number of shares of Parent Class A Common Stock payable and issuable, respectively, to the holder of such Warrant pursuant to Section 1.6(a)(iii) before deduction of amounts to be contributed to the Expense Fund; (F) the aggregate Pro Rata Portion of the Expense Amount to be contributed to the Expense Fund from the consideration otherwise payable to the holder of such Warrant pursuant to Section 1.6(a)(iii); (G) the net cash amount to be paid to the holder of such Warrant in accordance with Section 1.6(a)(iii) (after deduction of any amounts to be contributed to the Expense Fund with respect to such Warrant); (H) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 4.15); (I) whether, in the case of any Principal Stockholder, any Taxes are required to be withheld from the consideration that the holder of such Warrant is entitled to receive pursuant to Section 1.6(a)(iii); (J) with respect to any Warrant that constitutes a “covered security” within the meaning of Treasury Regulation Section 1.6045-1(a)(15), the cost basis of such Warrant; and (K) such other information as is reasonably requested by the Exchange Agent to comply with IRS Form 1099-B or other Tax reporting requirements in connection with the transactions contemplated by this Agreement; (vii) with respect to each Specified Person (if any): (A) the amount of any payment to be made to such Specified Person pursuant to such Specified Person’s Equity Release Agreement; and (B) whether any Taxes are required to be withheld from such payment; and (viii) a funds flow spreadsheet showing: (A) the aggregate amount to be delivered to the payroll provider of the Company or an Affiliate of the Company following the Closing in respect of any Change of Control Payments or any payment to be made to a Specified Person pursuant to an Equity Release Agreement; (B) the amount to be delivered by Parent to the Exchange Agent for further payment to the Stockholders (in the aggregate), including the stock portion of consideration payable each Warrantholder; (C) the aggregate amount to be delivered by Parent to the Securityholder Representative; (D) the amounts to be paid to each creditor of Indebtedness in satisfaction of such creditor’s portion of the Closing Indebtedness; (E) the amounts to be paid to each Person entitled to receive any portion of the Unpaid Transaction Expenses; and (F) wire transfer instructions for each payment referred to in this clause (viii). (b) The Company shall consider any comments to the draft Closing Spreadsheet made in good faith by Parent. In the event that Parent notifies the Company that there are reasonably apparent errors in the drafts of the Closing Spreadsheet delivered not later than three (3) Business Days prior to the Closing Date, Parent and the Company shall discuss such errors in good faith and the Company shall correct such errors prior to delivering final versions of the same in accordance with this Section 1.9. Without limiting the generality or effect of the foregoing, the Company shall provide to Parent, together with the Closing Spreadsheet, such supporting documentation, information and calculations as are reasonably necessary for Parent to verify and determine the calculations, amounts and other matters set forth in the Closing Spreadsheet.
Appears in 1 contract
Closing Spreadsheet. (a) The Company Terra OpCo shall prepare and deliver to ParentGSR III, not later than five (5) Business Days prior to the Closing Date a draft versionin accordance with this Section 6.3, and not later than two (2) Business Days prior to the Closing Date, a final version of a spreadsheet (the “Closing Spreadsheet”) in form and substance reasonably satisfactory to ParentGSR III, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified thereinin the Closing Spreadsheet), as of immediately prior to the Closing:
(i) an unaudited consolidated balance sheet on a holder by holder basis for each Terra OpCo Quotaholder, (A) the number of shares of Terra OpCo held by each holder immediately prior to the Terra Pre-Closing Restructuring Plan, (B) the number of PubCo Ordinary Shares held by each holder immediately prior to Closing after giving effect to the Terra Pre-Closing Restructuring Plan and (C) such holder’s Pro Rata Portion of the Company as of the Closing prepared in accordance with the Accounting PrinciplesPubCo Preferred Shares;
(ii) the calculation of: on a holder by holder basis for each GSR III Shareholder, (A) based on the consolidated Working Capital number of the Company GSR III Ordinary Shares held by each holder as of immediately prior to the Closing (and after giving effect to any redemptions), the “Closing Working Capital”); (B) number of PubCo Ordinary Shares each GSR III Shareholder shall hold upon the Closing Working Capital Shortfall, if any; (C) the aggregate amount of Indebtedness as consummation of the Closing (the “Closing Indebtedness”), together with a breakdown thereof; and (D) the aggregate amount of all Transaction Expenses that are unpaid as of the Closing (the “Unpaid Transaction Expenses”), together with a breakdown thereof, in each case prepared in accordance with the Accounting PrinciplesMerger;
(iii) the calculation of: of the aggregate GSR III Transaction Expenses (A) the Merger Consideration resulting from the amounts which information shall be supplied to Terra OpCo by GSR III as soon as practicable in advance of such delivery date for a draft Closing Spreadsheet set forth in Section 1.9(a)(ii); (B6.3(b) the Fully Diluted Shares; (C) the Per Share Merger Consideration, including the Per Share Cash Consideration and the Per Share Stock Consideration; and (D) each Indemnifying Party’s Pro Rata Portion;
(iv) with respect to each Person who is a Stockholder immediately prior to the Effective Time: (A) the name and email address of such Stockholder; (B) the number, class and series of Shares held by such Stockholder (on a certificate-by-certificate basis and including certificate numbers); (C) the aggregate cash amount and aggregate number of shares of Parent Class A Common Stock payable and issuable, respectively, to such Stockholder pursuant to Section 1.6 before deduction of amounts to be contributed to the Expense Fund (on a certificate-by-certificate basis and in the aggregate); (D) the aggregate Pro Rata Portion of the Escrow Amount to be withheld in accordance with Section 1.8(f); (E) the aggregate Pro Rata Portion of the Expense Amount to be contributed to the Expense Fund from the consideration otherwise payable to such Stockholder pursuant to Section 1.6(a)(i); (F) the net cash amount to be paid to such Stockholder upon surrender of such Stockholder’s Certificate(s) in accordance with Section 1.6 (after deduction of any cash and stock amounts to be contributed to the Expense Fund with respect to the Shares held by such Stockholder); (G) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 4.15); (H) in the case of a Principal Stockholder, whether any Taxes are required to be withheld from the consideration that such Stockholder is entitled to receive pursuant to Section 1.6(a)(i); (I) with respect to any Shares that constitute “covered securities” within the meaning of Treasury Regulation Section 1.6045-1(a)(15below), the cost basis of such Shares; and (J) such other information as is reasonably requested by the Exchange Agent to comply with IRS Form 1099-B or other Tax reporting requirements but in connection with the transaction contemplated by this Agreement;
(v) with respect to each Option (on an option-by-option basis) that is outstanding and unexercised as of immediately prior to the Closing: (A) the name and email address of record of the holder of such Option as of immediately prior to the Closing; (B) whether such holder is an employee, consultant, director or officer of the Company or any other Group Company; (C) the grant date of such Option; (D) whether such Option is an unvested Option or a vested Option; (E) the number of shares of Common Stock that are subject to such Option as of immediately prior to the Effective Time; (F) the exercise price per share applicable to such Option as of immediately prior to the Closing; (G) the vesting schedule (including the vesting commencement date and any acceleration provisions) applicable to such Option; (H) the expiration date of such Option; (I) whether such Option is intended to qualify as an “incentive stock option” (as defined in Section 422 of the Code); and (J) with respect to Options subject to Section 1.6(a)(ii)(D) (1) the resulting number of shares of Parent Class A Common Stock to be subject to such Option immediately after the Effective Time pursuant to Section 1.6(a)(ii); and (2) the resulting exercise price per share of such Option immediately after the Effective Time pursuant to Section 1.6(a)(ii);
(vi) with respect to each Warrant (after giving effect to any exercises or deemed exercises of Warrants prior to the Closing): (A) the name and email address of record of the holder of such Warrant as of immediately prior to the Closing; (B) the number, class and series of shares in the capital of the Company that are subject to such Warrant (on a warrant-by-warrant basis) and the number of such shares that are vested as of immediately prior to the Closing; (C) the exercise price applicable to such Warrant as of immediately prior to the Closing; (D) the aggregate Pro Rata Portion of the Escrow Amount to be withheld in accordance with Section 1.8(f); (E) the aggregate cash amount and aggregate number of shares of Parent Class A Common Stock payable and issuable, respectively, to the holder of such Warrant pursuant to Section 1.6(a)(iii) before deduction of amounts to be contributed to the Expense Fund; (F) the aggregate Pro Rata Portion of the Expense Amount to be contributed to the Expense Fund from the consideration otherwise payable to the holder of such Warrant pursuant to Section 1.6(a)(iii); (G) the net cash amount to be paid to the holder of such Warrant in accordance with Section 1.6(a)(iii) (after deduction of any amounts to be contributed to the Expense Fund with respect to such Warrant); (H) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or event at the direction of Parent in accordance with Section 4.15); (I) whether, in the case of any Principal Stockholder, any Taxes are required to be withheld from the consideration that the holder of such Warrant is entitled to receive pursuant to Section 1.6(a)(iii); (J) with respect to any Warrant that constitutes a “covered security” within the meaning of Treasury Regulation Section 1.6045-1(a)(15), the cost basis of such Warrant; and (K) such other information as is reasonably requested by the Exchange Agent to comply with IRS Form 1099-B or other Tax reporting requirements in connection with the transactions contemplated by this Agreement;
(vii) with respect to each Specified Person (if any): (A) the amount of any payment to be made to such Specified Person pursuant to such Specified Person’s Equity Release Agreement; and (B) whether any Taxes are required to be withheld from such payment; and
(viii) a funds flow spreadsheet showing: (A) the aggregate amount to be delivered to the payroll provider of the Company or an Affiliate of the Company following the Closing in respect of any Change of Control Payments or any payment to be made to a Specified Person pursuant to an Equity Release Agreement; (B) the amount to be delivered by Parent to the Exchange Agent for further payment to the Stockholders (in the aggregate), including the stock portion of consideration payable each Warrantholder; (C) the aggregate amount to be delivered by Parent to the Securityholder Representative; (D) the amounts to be paid to each creditor of Indebtedness in satisfaction of such creditor’s portion of the Closing Indebtedness; (E) the amounts to be paid to each Person entitled to receive any portion of the Unpaid Transaction Expenses; and (F) wire transfer instructions for each payment referred to in this clause (viii).
(b) The Company shall consider any comments to the draft Closing Spreadsheet made in good faith by Parent. In the event that Parent notifies the Company that there are reasonably apparent errors in the drafts of the Closing Spreadsheet delivered not later than three (3) least 10 Business Days prior to the Closing Date;
(iv) the calculation of the aggregate Terra Transaction Expenses; and
(v) a funds flow memorandum setting forth applicable wire transfer instructions and other information reasonably requested by GSR III.
(b) Terra OpCo shall prepare and deliver to GSR III a draft of the Closing Spreadsheet not later than five Business Days prior to the Closing Date and a final version of the Closing Spreadsheet to GSR III not later than two Business Days prior to the Closing Date. In the event that GSR III notifies Terra OpCo that there are errors in the draft of the Closing Spreadsheet, Parent Terra OpCo and the Company GSR III shall discuss such errors the related items in good faith and Terra OpCo shall, upon reasonably determining that there are errors in the Company shall draft of the Closing Spreadsheet, correct such errors prior to delivering the final versions version of the same in accordance with this Section 1.96.3. Without limiting the generality or effect of the foregoing, the Company Terra OpCo shall provide to ParentGSR III, together with the Closing Spreadsheet, such supporting documentation, information and calculations as are reasonably necessary for Parent GSR III to verify and determine the calculations, amounts and other matters set forth in the Closing Spreadsheet.
Appears in 1 contract
Sources: Business Combination Agreement (GSR III Acquisition Corp.)