Common use of Pre-Closing Statement Clause in Contracts

Pre-Closing Statement. At least five (5) Business Days prior to the Closing Date, the Company shall deliver to Buyer a statement (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate of (A) the amount of Closing Cash (the “Estimated Cash”), (B) the Closing Working Capital (the “Estimated Closing Working Capital”), (C) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoing, the calculation of the Adjustment Amount (the “Estimated Adjustment Amount”), together with calculations demonstrating each component thereof, as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components of the Pre-Closing Statement prior to the Closing Date. Buyer shall be entitled to review the Pre-Closing Statement and the materials and information used by the Company in preparing the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer with respect to the Pre-Closing Statement prior to the Closing Date. The amounts set forth in the Pre-Closing Statement shall be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing Statement, the Company’s version of the Pre-Closing Statement shall be used.

Pre-Closing Statement. At The Sellers will prepare or cause to be prepared and delivered to the Buyers at least five (5) Business Days prior to the Closing Date, the Company shall deliver to Buyer a statement (the “Pre-Closing Statement”) setting forth the Company’s their good faith estimate calculation of (A) the amount of Closing Cash (the “Estimated Cash”), (B) the Closing Net Working Capital which shall be equal to Target Net Working Capital unless such calculation is at least one million dollars greater than or less than Target Net Working Capital (the “Estimated Closing Net Working Capital”), Net Cash Amount, (C) the “Estimated Net Cash Amount”), Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoing, the calculation of the Adjustment Amount Restructuring Expenses (the “Estimated Adjustment AmountRestructuring Expenses”), together with calculations demonstrating each component thereofthe Capex Adjustment (the “Estimated Capex Adjustment”), as well as the amount of each U.S. Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this AgreementPurchase Price, including the definitions Dutch Purchase Price and payment instructions for the payment of the terms U.S. Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, Purchase Price and the Accounting RulesDutch Closing Purchase Price, the Escrow Amount and for each third party payee with respect to Transaction Expenses and, if applicable, the Restructuring Expenses. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of In connection with the components preparation of the Pre-Closing Statement (and prior to delivery thereof in accordance with the Closing Date. Buyer immediately prior sentence), the Sellers shall be entitled to review consult in good faith with the Pre-Closing Statement Buyers regarding the amounts and calculations therein, provide the materials and information used Buyers with reasonable supporting documentation for the calculations included therein, including a statement detailing cash held on an entity by entity basis, make the financial records of the Company and its Subsidiaries reasonably available to the Buyers in preparing the Pre-Closing Statement, connection therewith and the Company shall consider in good faith any comments of Buyer with respect to or modifications from the Pre-Closing Statement prior to the Closing Date. The amounts set forth in the Pre-Closing Statement shall be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing Statement, the Company’s version of the Pre-Closing Statement shall be usedBuyers.

Pre-Closing Statement. At least five three (53) Business Days prior to the Closing DateEffective Time of Merger I, the Company shall prepare, in consultation with Parent, and deliver to Buyer Parent a written statement (the “Pre-Closing Statement”) setting ), which shall set forth the Company’s (a) good faith estimate of (A) the amount of Closing Cash (the “Estimated Cash”), (B) the Closing Working Capital (the “Estimated Closing Working Capital”), (Cb) the Debt Payoff Amount as reflected in the Payoff Letter, (c) Transaction Expenses, a list of Persons to whom such Transaction Expenses are payable, and wire instructions therefor, (d) Closing Date Cash and Cash Equivalents and (e) the Closing Date Indebtedness (Merger Consideration and aggregate Merger Consideration based upon such items. The Company shall also deliver to Parent any and all reasonable supporting or underlying documentation used in the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoing, the calculation preparation of the Adjustment Amount (the “Estimated Adjustment Amount”), together with calculations demonstrating each component thereof, as well as the amount of each Pre-Closing PaymentStatement. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreementthe same form as the Illustrative Pre-Closing Statement and Working Capital Examples as attached hereto as Annex A. Parent shall have the right, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components following Parent’s receipt of the Pre-Closing Statement, to object thereto by delivering written notice to the Company no later than noon EST on the Business Day before the Closing Date. To the extent Parent timely objects to the Pre-Closing Statement (or any component thereof), Parent and the Company shall attempt to resolve their differences; provided that, if Parent and the Company are unable to resolve any such dispute prior to the Closing Date, then, subject to Section 2.6, the Company’s calculations as reflected in the Pre-Closing Statement shall control for purposes of all payments to be made at Closing. Buyer To the extent Parent and the Company resolve any of their differences prior to the Closing, then Parent and the Company shall jointly agree on a revised Pre-Closing Statement that will control for purposes of the payments to be entitled to review made at the Closing. For the avoidance of doubt, the Pre-Closing Statement and the materials and information used by the Company in preparing the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer with respect to the Pre-Closing Statement prior to the Closing Date. The amounts set forth in Section 2.6 below (and all estimates and calculations of Working Capital), as applicable, shall be prepared in accordance with the Pre-Accounting Methodology, except that the Closing Statement (and all calculations of Working Capital) shall be binding on the Parties for purposes (a) not include any purchase accounting or other adjustment arising out of the Closing Payments consummation of the transactions contemplated herein, (b) not be impacted by any action of Parent, the Surviving Company or any of their Affiliates, and (c) in the event of any disagreement between the Company and Buyer as to the Pre-Closing Statement, the Company’s version case of the Pre-Closing Statement calculations of Working Capital, shall be used.only include the same line items included in the example calculation set forth on Annex A.

Pre-Closing Statement. At least No later than five (5) Business Days prior to before the Closing Date, the Company shall will prepare and deliver to Buyer Parent a statement (the “Pre-Closing Statement”) ), which will be prepared in accordance with the Accounting Principles, setting forth the Company’s good faith estimate estimates of each of (Ai) the amount of Estimated Merger Consideration, (ii) the Closing Cash (the “Estimated Closing Cash”), (Biii) the Closing Indebtedness (the “Estimated Closing Indebtedness”), (iv) the Company Transaction Expenses (the “Estimated Company Transaction Expenses”), (v) the Closing Working Capital (the “Estimated Closing Working Capital”), and (Cvi) the Closing Date Indebtedness Aggregate Option Exercise Price. In addition, at least three (the “Estimated Closing Date Indebtedness”), (D3) Business Days before the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoingDate, the calculation of the Adjustment Amount (the “Estimated Adjustment Amount”), together Company will deliver to Parent a funds flow memorandum in form and substance reasonably acceptable to Parent setting forth payment instructions with calculations demonstrating respect to each component thereof, as well as the amount of each Closing Payment. The Pre-Closing Statement shall payment to be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components of the Pre-Closing Statement prior to made on the Closing Date. Buyer shall be entitled The Company will consult with Parent and its accountants with respect to review the Pre-Closing Statement and the materials and information used by the Company in preparing preparation of the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer with respect to the Pre-Closing Statement prior will be in form and substance reasonably satisfactory to the Closing DateParent. The amounts set forth in the Pre-Closing Statement shall will be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing Statement, accompanied by reasonably detailed schedules supporting the Company’s version calculation of the Pre-Estimated Merger Consideration, the Estimated Closing Statement shall be usedCash, the Estimated Closing Indebtedness, the Estimated Company Transaction Expenses, the Estimated Closing Working Capital and the Aggregate Option Exercise Price.

Pre-Closing Statement. At least five (5) No later than three Business Days prior to before the Closing Date, the Company shall will prepare and deliver to Buyer a Parent and the Purchaser an unaudited statement (the “Pre-Closing Statement”) ), which will be prepared in accordance with GAAP as applied in the preparation of the Company Financial Statements (the “Accounting Principles”), setting forth the Company’s good faith estimate estimates of each of (Ai) the Estimated Aggregate Consideration; (ii) the aggregate amount of Closing all Cash (of the “Estimated Cash”), (B) Company as of 11:59 p.m. on the day immediately preceding the Closing Working Capital Date (the “Estimated Closing Working CapitalCash”), ; (Ciii) the aggregate amount of all Indebtedness of the Company as of 11:59 p.m. on the day immediately preceding the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), ; (Div) the Closing estimated Company Transaction Expenses of the Company as of 11:59 p.m. (Pacific Time) on the day immediately preceding the Closing Date (the “Estimated Closing Transaction Expenses”), ; and (Ev) based the aggregate amount of Trade Payables as of 11:59 p.m. (Pacific Time) on the foregoing, day immediately preceding the calculation of the Adjustment Amount Closing Date (the “Estimated Adjustment AmountClosing Trade Payables”). In addition, together with calculations demonstrating each component thereofat least three Business Days before the Closing Date, as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, Company will deliver to Parent and the Accounting Rules. Seller shall provide Company reasonable documentation Purchaser a funds flow memorandum in form and access substance reasonably acceptable to relevant personnel as needed Parent and the Purchaser setting forth payment instructions with respect to support calculation of the components of the Pre-Closing Statement prior each payment to be made on the Closing Date. Buyer shall be entitled The Company will consult with Parent, the Purchaser and their accountants with respect to review the Pre-Closing Statement and the materials and information used by the Company in preparing preparation of the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer with respect to the Pre-Closing Statement prior will be in form and substance reasonably satisfactory to Parent and the Closing DatePurchaser. The amounts set forth in the Pre-Closing Statement shall will be binding on the Parties for purposes accompanied by reasonably detailed schedules indicating a calculation of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing StatementEstimated Aggregate Consideration, the Company’s version of Estimated Closing Cash, the Pre-Estimated Closing Statement shall be usedIndebtedness, the Estimated Closing Transaction Expenses, and the Estimated Closing Trade Payables.

Pre-Closing Statement. At least five four (54) Business Days prior to the anticipated Closing Date, the Company shall deliver to Buyer Parent a statement consisting of the Company’s good faith estimates of the following amounts: (i) an estimated calculation of the Closing Cash Amount (the “Estimated Closing Cash Amount”), (ii) an estimated calculation of the Seller Transaction Expenses as of the Closing Date (the “Estimated Seller Transaction Expenses”), (iii) an estimated calculation of the Closing Indebtedness (the “Estimated Closing Indebtedness”), (iv) an estimated calculation of Closing Working Capital (the “Estimated Working Capital”) and the Estimated Working Capital Adjustment, (v) an estimated calculation of the Transaction Tax Benefit Amount (the “Estimated Transaction Tax Benefit Amount”) and (vi) a calculation of the Estimated Merger Consideration (in each case together with backup calculations). Parent may submit any objections in writing to the Company until 5:00 p.m., New York City time, two Business Days prior to the anticipated Closing Date and the Company will cooperate in good-faith with Parent to revise the draft statement to reflect the mutual agreement of the Company and Parent with respect to the estimated amounts set forth in the preceding sentence (as so revised and agreed, the “Pre-Closing Statement”) setting ); provided, that if the Company and Parent cannot reach an agreement with respect to the amounts set forth in the Company’s good faith estimate of (A) the amount of Closing Cash (the “Estimated Cash”)preceding sentence, (B) the Closing Working Capital (the “Estimated Closing Working Capital”), (C) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoing, the calculation of the Adjustment Amount (the “Estimated Adjustment Amount”), together with calculations demonstrating each component thereof, as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components of the Pre-Closing Statement prior to will reflect the Closing Date. Buyer shall be entitled to review the PreCompany’s good-Closing Statement and the materials and information used by the Company in preparing the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer estimates with respect to the Pre-Closing Statement prior to the Closing Datesuch amounts. The amounts set forth in the Pre-Closing Statement Estimated Merger Consideration shall be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer subject to adjustment pursuant to this Section 2.11 (as to the Pre-Closing Statementadjusted, the Company’s version of “Merger Consideration”). The Estimated Closing Cash Amount and the Pre-Closing Statement Estimated Working Capital shall be usedprepared in accordance with the Applicable Accounting Principles.