Allocation Certificate. (a) Three Business Days prior to the Closing Date, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closing, of: (i) the Company’s good faith estimate of the Closing Adjustment (the “Estimated Closing Adjustment”); (ii) (A) the Company’s calculation of the Aggregate Consideration Value, (B) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment; (iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records; (iv) (A) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and (v) the date that each Equityholder acquired the 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. (b) 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 and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
Appears in 2 contracts
Samples: Merger Agreement (Formfactor Inc), Merger Agreement (Formfactor Inc)
Allocation Certificate. (a) Three At least five Business Days prior to the Closing Date, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company Company, signed by the Chief Executive Officer an executive officer of the Company on behalf of the Company, certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) an estimated unaudited balance sheet (the Company’s good faith estimate “Closing Balance Sheet”) of the Company as of the Closing Adjustment Date substantially in the form of the Company Balance Sheet and prepared in accordance with Korean GAAP (except for the “Estimated Closing Adjustment”)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) (A) the Company’s calculation of estimated cash on hand at the Aggregate Consideration Value, (B) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing AdjustmentClosing;
(iii) the name aggregate Acquisition Expenses as of the Closing, together with a description and mailing address and, if available, e-mail address, the amount of each Equityholder and Option Holder as set forth in the Company’s recordselement thereof;
(iv) the aggregate Option Expenses as of the Closing;
(v) a list of Sellers substantially in the form attached as Exhibit A, indicating (A) the aggregate amount identity and mailing address of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Timerecord Seller of Company Capital Stock, (B) the number and type of shares of Company Capital Stock held by each Equityholdersuch record Seller, (C) a calculation of the amount of Closing Payment payable to each such Seller at the Closing, (D) each Seller’s Pro Rata Portion Allocable Share of the Cash Consideration, expressed as a percentage; (E) each Seller’s Allocable Share of the Escrow Amount and the Non-Selling Escrow Amount, expressed as a percentage; (F) each Seller’s Allocable Share of the Earnout Consideration (if earned pursuant to Section 1.7), expressed as a percentage; and (CG) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing AdjustmentSeller; and
(vvi) the date that information required on the form attached as Exhibit F for each Equityholder acquired Seller. With the shares of Company Common Stock and Company Preferred Stock Common or Preferred Stock and, if acquired after January 1, 2011Allocation Certificate, the cost basis of such shares.
(b) The Company shall promptly deliver to give Parent such further information with respect to (i) copies of all supporting work papers used in the calculations preparation of the Closing Balance Sheet and the Allocation Certificate in order to allow Parent to confirm the accuracy and completeness thereof, and (ii) a certificate, signed by the Company and Xxxxxxx Xxxxxx Associates, LLC (the “Bank”), setting forth such parties’ binding agreement regarding the amount and timing of all payments due from or on behalf of the Company and the Sellers to the Bank, including without limitation amounts due under that certain engagement letter agreement dated as Parent may reasonably requestof November 12, 2013 (the “Bank Certificate”). The Allocation Certificate Certificate, when approved by Parent after any corrections, shall be deemed the definitive calculation of the amounts Consideration payable to the Equityholders and Option Holders, each Seller in connection with the Merger Purchase Transaction and the disbursement thereof, except with respect subject to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled any adjustment of the Consideration pursuant to rely on Section 1.6 and the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account satisfaction of its acting the conditions set forth in accordance with sameSection 1.7(b).
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Ixys Corp /De/)
Allocation Certificate. At least three (a3) Three Business Days prior to the Initial Closing Date, the Company shall deliver to Parent Investor a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Financial Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as on behalf of the Closing, ofCompany the following:
(i) the Company’s good faith estimate of Net Working Capital Surplus or the Closing Adjustment (the “Estimated Closing Adjustment”Net Working Capital Deficiency, as finally determined in accordance with Section 2.4(a);
(ii) (A) other than the Company’s calculation Company Debt owed to the Senior Lender, all other Company Debt not paid as of immediately prior to the Aggregate Consideration ValueInitial Closing, (B) including a description and amount for each element thereof, together with payoff letters, in form and substance satisfactory to Investor, indicating the amount of cash and stock consideration payable or issuable pursuant necessary to Section 2.03(adischarge in full such Company Debt at the Initial Closing (the “Company Debt Payoff Amount”) in respect of each share of and, if such Company Common Stock and Debt is secured, an undertaking by such holder to discharge at the Initial Closing any Liens securing such Company Preferred Stock, (C) the applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing AdjustmentDebt;
(iii) the name and mailing address andaggregate amount of all Change in Control Payments, if availableany, e-mail address, together with a description and the amount of each Equityholder and Option Holder as set forth in the Company’s recordselement thereof;
(iv) the aggregate amount of all Transaction Expenses, together with a description and the amount of each element thereof;
(Av) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective TimeExcess Operating Costs, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any;
(vi) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing AdjustmentAdjusted Cash Purchase Price; and
(vvii) the date that each Equityholder acquired resulting Closing Cash Payment. The Company shall give Investor timely access to all supporting records and work papers used in preparation of the shares 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 Common or Preferred Stock and, if acquired after January 1, 2011, the cost basis of such sharespayments to be made at the Initial Closing.
(bviii) The Company, Investor, and Company shall promptly deliver Parent agree to Parent such further information with respect treat any adjustment to the calculations 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 Section 1313(a) 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 and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameCode.
Appears in 2 contracts
Samples: Investment Agreement (MedMen Enterprises, Inc.), Investment Agreement
Allocation Certificate. At least three (a3) Three Business Days prior to the Closing Date, the Company shall deliver to Parent the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Financial Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as on behalf of the Closing, of:Company and its Subsidiaries that the following are good faith estimates of the Company: 15
(i) the Company’s good faith estimate of the an estimated Closing Adjustment Balance Sheet; (ii) a statement (the “Estimated Closing AdjustmentWorking Capital Statement”);
(ii) of the Estimated Net Working Capital of the Company and an estimate of the (A) the Company’s calculation of the Aggregate Consideration Value, Net Working Capital Deficiency or (B) the amount of cash and stock consideration payable by which the Net Working Capital is greater than or issuable pursuant equal to Section 2.03(a) in respect of each share of Company Common Stock and Company Preferred Stockthe Net Working Capital Target, (C) the applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the which Estimated Closing Adjustment;
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 name 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 mailing address 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 availableany such Company Debt is secured, e-mail address, of each Equityholder and Option Holder as set forth in an undertaking by such holder to discharge at Closing any Liens securing such Company Debt; (iv) the Company’s records;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)
(iv) (A) the aggregate amount of cash all Change in Control Payments, together with a description and stock consideration payable or issuable to the amount of each Equityholder element thereof and Option Holder after the Effective Time, (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 Equityholder’s Pro Rata Portion of the Escrow Amount, and element thereof; (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(vvi) the date that each Equityholder acquired Company’s estimate of aggregate Excess Cash; (vii) the number of shares of Company Common Stock and Company Preferred Stock Common or Preferred Stock and, if acquired after January 1, 2011(by Series) outstanding; (viii) the Merger Consideration and in respect of each share of the Company Stock, the cost basis Per Share Net Merger Consideration ; (ix) (A) in respect of such shares.
each In-the-Money Company Option, the Per Company Option Merger Payment (b) The Company shall promptly deliver each payment, for avoidance of doubt, to Parent such further information with respect to the calculations be net of the Allocation Certificate as Parent may reasonably request. The Allocation Certificate shall be deemed applicable exercise price for such In-the-Money Company Option) and (B) the definitive calculation applicable employer’s portion of the amounts payable to the Equityholders and Option Holders, in connection with the Merger and the disbursement thereof, except applicable employee or payroll Taxes with respect to such adjustments 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 may otherwise be provided under this Agreement. Parent shall be entitled a percentage and a dollar amount; and (xi) the identity and mailing address (and email address, to rely on the Allocation Certificate for all such disbursements extent available) of each record holder of the Company Securities and upon such disbursements shall have no responsibility or liability on account type of its acting in accordance with same.Company Securities 16
Appears in 2 contracts
Samples: Merger Agreement (PTC Inc.), Merger Agreement
Allocation Certificate. At least three (a3) Three Business Days prior to the Initial Closing Date, the Company shall deliver to Parent Investor a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Financial Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as on behalf of the Closing, ofCompany the following:
(i) the Company’s good faith estimate of Net Working Capital Surplus or the Closing Adjustment (the “Estimated Closing Adjustment”Net Working Capital Deficiency, as finally determined in accordance with Section 2.4(a);
(ii) (A) other than the Company’s calculation Company Debt owed to the Senior Lender, all other Company Debt not paid as of immediately prior to the Aggregate Consideration ValueInitial Closing, (B) including a description and amount for each element thereof, together with payoff letters, in form and substance satisfactory to Investor, indicating the amount of cash and stock consideration payable or issuable pursuant necessary to Section 2.03(adischarge in full such Company Debt at the Initial Closing (the “Company Debt Payoff Amount”) in respect of each share of and, if such Company Common Stock and Debt is secured, an undertaking by such holder to discharge at the Initial Closing any Liens securing such Company Preferred Stock, (C) the applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing AdjustmentDebt;
(iii) the name and mailing address andaggregate amount of all Change in Control Payments, if availableany, e-mail address, together with a description and the amount of each Equityholder and Option Holder as set forth in the Company’s recordselement thereof;
(iv) the aggregate amount of all Transaction Expenses, together with a description and the amount of each element thereof;
(Av) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective TimeExcess Operating Costs, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any;
(vi) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing AdjustmentAdjusted Cash Purchase Price; and
(vvii) the date that each Equityholder acquired resulting Closing Cash Payment. The Company shall give Investor timely access to all supporting records and work papers used in preparation of the shares 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 Common or Preferred Stock and, if acquired after January 1, 2011, the cost basis of such sharespayments to be made at the Initial Closing.
(bviii) The Company, Investor, and Company shall promptly deliver Parent agree to Parent such further information with respect treat any adjustment to the calculations 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 Section 1313(a) 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 and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameCode.
Appears in 2 contracts
Samples: Investment Agreement (Ascend Wellness Holdings, LLC), Investment Agreement
Allocation Certificate. (a) Three Business Days prior to On or before the Closing DateEffective Time, the Company shall deliver to Parent IntraLinks a spreadsheet setting forth:
(i) an estimated unaudited consolidated balance sheet (the “Closing Balance Sheet”) of the 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 the Subsidiaries as of the Closing, together with a description and the amount of each element thereof;
(A) the aggregate 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 (the “Closing Change in Control Payments”), together with a description and the amount of each element 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 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 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 (C) the vesting schedule with respect to each Restricted Share;
(ix) the amount of: (A) the Merger Consideration payable to each Stockholder without reduction for such Stockholder’s Pro Rata Share of the Holdback Amount; (B) the Merger Consideration to be paid to each Stockholder net of such Stockholder’s Pro Rata Share of the Holdback Amount; (C) each Stockholder’s Pro Rata Share of the Holdback Amount, expressed as a dollar amount and as a percentage; (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 (F) 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 (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”) of the Company ), signed by the Company’s Chief Executive Officer of the Company and Chief Operating Officer certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) of each of the Company’s good faith estimate items set forth on the Allocation Certificate in conformity with the requirements of this Section 1.6(e). The Company shall give IntraLinks timely access to all supporting workpapers used in the preparation of the Closing Adjustment (the “Estimated Closing Adjustment”);
(ii) (A) the Company’s calculation of the Aggregate Consideration Value, (B) the amount of cash Balance Sheet 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(iv) (A) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the 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.
(b) 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 Certificate, which Allocation Certificate Certificate, when in form and substance satisfactory to and approved by IntraLinks, shall be deemed the definitive calculation of the amounts Note Payout Amount payable to the Equityholders Noteholders and Option Holders, Merger Consideration payable to the Stockholders and holders of Company Stock Rights in connection with the Merger and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
Appears in 1 contract
Allocation Certificate. At least one (a1) Three Business Days Day prior to the Closing Date, the Company shall deliver to the Parent a certificate (the “Allocation Certificate”) signed by the Holder Representative (on behalf of the Company signed by Holders) and the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate estimated consolidated unaudited balance sheet (the “Closing Balance Sheet”) of the 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 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 (the “Prepaid Acquisition Expenses”) and whether such Prepaid Acquisition Expenses were paid or advanced by the Parent 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;
(iii) the aggregate Cash as of the Closing Adjustment (the “Estimated Closing AdjustmentCash”);
(ii) (Aiv) the Company’s aggregate Indebtedness of the Company as of the Effective Time;
(v) the calculation of the Aggregate Closing Consideration, the number of Fully Diluted Common Shares, the Per Share Common Closing Consideration Value, (B) the amount of cash and stock consideration payable or issuable pursuant with respect to Section 2.03(a) in respect of each outstanding share of Company Common Stock and the number of Company Preferred Stock, (C) the applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing AdjustmentConvertible Notes;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(ivvi) (A) the aggregate amount identity and mailing address of cash each record holder of Company Common Stock and stock consideration payable or issuable to the number and type of shares of Company Common Stock and share certificate numbers held by each Equityholder such Company Stockholder and Option Holder after the Effective Time, (B) each Equityholder’s Pro Rata Portion the identity and mailing address of record of the Escrow Amountholder 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 Common Stock subject to the Company Convertible Note that will be exercisable as of the Closing;
(vii) the 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) any the required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(vviii) the date that Pro Rata Share of each Equityholder acquired the 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.
(b) Holder. The Company shall promptly deliver give the Parent timely access to Parent such further information with respect to all supporting workpapers used in the calculations preparation of the Closing Balance Sheet and the Allocation Certificate as Parent may reasonably request. The Certificate, which Allocation Certificate Certificate, when in form and substance satisfactory to and approved by the Parent, shall be deemed the definitive calculation of the amounts Merger Consideration payable to the Equityholders and Option Holders, Holders at the Closing in connection with the Merger and the disbursement thereofthereof (subject, except with respect however, to such adjustments as may otherwise be provided the Parent’s indemnification rights under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameSection 7.2(d)).
Appears in 1 contract
Samples: Merger Agreement (Matinas BioPharma Holdings, Inc.)
Allocation Certificate. At least three (a3) Three Business Days prior to the Closing Date, the Company shall deliver to Parent the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Financial Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as on behalf of the Closing, ofCompany that the following are good faith estimates of the Company:
(i) the Company’s good faith estimate of the an estimated Closing Adjustment Balance Sheet;
(ii) a statement (the “Estimated Closing AdjustmentWorking Capital Statement”);
(ii) (A) the Company’s calculation of the Aggregate Consideration ValueEstimated Net Working Capital of the Company and an estimate of the Net Working Capital Deficiency or the Net Working Capital Surplus, (B) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the which Estimated Closing AdjustmentWorking 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 name Estimated Company Debt not paid as of immediately prior to the Effective Time, including a description and mailing address amount for each element thereof, together with payoff letters, in form and substance satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if availablesuch Company Debt is secured, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s recordsan 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 cash all Change in Control Payments, together with a description and stock consideration the amount of each element thereof and (B) any Change in Control Payments that are due and payable or issuable in connection with the Closing, together with a description and the amount of each element thereof;
(vii) the Company’s estimate of aggregate Closing Cash;
(viii) the Company’s estimate of the Closing Cash Merger Consideration and the Closing Share Merger Consideration, and (A) the applicable portion of the Closing Cash Merger Consideration and the Closing Share Merger Consideration payable to each Equityholder Stockholder, and Option Holder after (B) each Stockholder’s Pro Rata Share of the Effective TimeEscrow Amount 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 Equityholder’s Pro Rata Portion of Stockholder and certificate numbers (as applicable) with respect to the Escrow Amount, Shares held by such Stockholder and (C) any required withholding (if any) with respect wire instructions for each Stockholder. The Company shall give the Buyer timely reasonable access to each Equityholder all supporting records and Option Holder, work papers used in each case, as applicable, based upon preparation of the Estimated Closing Adjustment; and
(v) Working Capital Statement and Allocation Certificate, which, when in form and substance reasonably satisfactory to and approved by the date that each Equityholder acquired the shares of Company Common Stock and Company Preferred Stock Common or Preferred Stock andBuyer, if acquired after January 1, 2011, the cost basis of such shares.
(b) The Company shall promptly deliver to Parent such further information with respect to the calculations be used for purposes of the Allocation Certificate as Parent may reasonably requestpayments to be made at Closing, though remain subject to adjustment pursuant to Section 1.7(b) (Post-Closing True-Up). The Allocation Certificate shall be deemed subject to the definitive calculation Buyer’s approval prior to the Closing (not to be unreasonably withheld, conditioned or delayed) and shall be prepared in accordance and full compliance with the terms and conditions of the amounts payable Company’s organizational documents then in effect and any other applicable Contracts governing the distribution of equity proceeds to the Equityholders and Option Holdersany Stockholder, in connection with the Merger and the disbursement thereofParent, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent the Buyer and the Surviving Company shall each be entitled to rely upon and shall incur no liability as a result of its reliance on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility delivered by the Company (or liability on account of its acting in accordance with sameany updates or supplements thereto delivered by the Company prior to the Closing).
Appears in 1 contract
Allocation Certificate. At least two (a2) Three Business Days prior to the Closing Date, the Company shall deliver to Parent Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate of the Closing Adjustment an estimated unaudited consolidated balance sheet (the “Estimated Closing AdjustmentBalance 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 (Athe “Estimated Closing Working Capital Statement”) of the Estimated Net Working Capital of the Company’s calculation , as of 11:59 PM Eastern Time on the date one day prior to the Closing Date, and the Net Working Capital Deficiency based thereon, if any, which Estimated Closing Working Capital Statement shall be prepared in accordance with GAAP, without giving effect to the consummation of the Aggregate Consideration Value, (B) Transactions and subject to the amount adjustments specified in the definition 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing AdjustmentNet Working Capital;
(iii) the name 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 mailing address amount for each element thereof, together with payoff letters, in form and substance satisfactory to Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if availablesuch Company Debt is DB3/200169974.12 secured, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s recordsan 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;
(vi) (A) the aggregate amount of cash all Change in Control Payments, if any, together with a description and stock consideration the amount of each element thereof, including any related employer portion of employment taxes attributable thereto, and (B) any Change in Control Payments that are due and payable or issuable in connection with the Closing, together with a description and the amount of each element thereof, including any related employer portion of employment taxes attributable thereto, and the wire instructions for each Person to each Equityholder whom such a Change in Control Payment shall be due and Option Holder after payable in connection with the Closing;
(vii) the aggregate Unrestricted Cash as of the Effective Time and the amount of 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; (B) in respect of each Equityholder’s Pro Rata Portion of Class A Unit, the Escrow Amount, Per Unit Merger Consideration and the Per Unit Net Merger Consideration; (C) any required withholding in respect of each Preferred Unit, the Per Series A Unit Merger Consideration and the Per Unit Net Merger Consideration; (if anyD) 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 Equityholder holder of Class B Units and Option Holdereach Phantom Unitholder, in (A) the Threshold Amount applicable thereto and (B) the Aggregate Exercise Amount, if any;
(xi) (A) each caseEscrow Participant’s Pro Rata Share of the Escrow Amount and Expense Fund expressed as a percentage, as applicable, based upon the Estimated Closing Adjustmentand (B) each Securityholder’s Earn-Out Share Percentage; and
(vxii) (A) the date that identity and mailing address of each Equityholder acquired record holder of the shares of Company Common Stock Securities and Company Preferred Stock Common or Preferred Stock andPhantom Units and type of unit and certificate numbers held by each such Securityholder, if acquired after January 1, 2011, and (B) wire instructions for the cost basis of such shares.
(b) Company. The Company shall promptly deliver give Buyer and Parent commercially reasonable access to Parent such further information with respect to the calculations all supporting records and work papers used in preparation of the Closing Balance Sheet, Estimated Closing Working Capital Statement and Allocation Certificate as Parent may reasonably request. The Allocation Certificate Certificate, which, when in form and substance satisfactory to and approved by Buyer, shall be deemed the definitive calculation used for purposes of the amounts payable payments to the Equityholders and Option Holdersbe made at Closing, in connection with the Merger and the disbursement thereof, except with respect though remaining subject to such adjustments as may otherwise be provided under this Agreementadjustment pursuant to Section 1.7(c) (Post-Closing True-Up). Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.DB3/200169974.12
Appears in 1 contract
Samples: Merger Agreement (PTC Inc.)
Allocation Certificate. At least two (a2) Three Business Days prior to the Closing Date, the Company shall deliver to Parent the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate of the Closing Adjustment a statement (the “Estimated Closing AdjustmentWorking Capital Statement”) of the Estimated Net Working Capital of the Company, as of 11:59 PM Eastern time on the Closing Date, and the Net Working Capital Adjustment Amount based thereon, which Estimated Closing Working Capital Statement shall be prepared in accordance with GAAP, 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;
(ii) (A) the Estimated Company Debt not paid as of immediately prior to the Effective Time, including a description and amount for each element thereof, together with payoff letters, in form and substance satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if such Company Debt is secured, an undertaking by such holder to discharge at Closing any Liens securing such Company Debt, and (B) 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;
(iii) the Company’s calculation of (A) the Aggregate Consideration Value, Cash Purchase Price; (B) the amount of cash and stock consideration payable or issuable pursuant to Section 2.03(a) in respect of each share of the Company Common Stock and Company Preferred Stock, the Per Share Merger Consideration, the Per Share Closing Consideration and the Per Share Net Closing Consideration; (C) the applicable Per Share Option Consideration in respect of each Company Stock Option, the Per Company Option Merger Consideration, the Per Company Option Closing Consideration and the Per Company Option Net Closing Consideration; (D) the applicable Per Share Warrant Consideration in respect of each Company the SVB Warrant, in each case based upon the Estimated SVB Warrant Merger Consideration, the SVB Warrant Closing Adjustment;
Consideration and the SVB Warrant Net Closing Consideration; (iiiE) the name Fully Diluted Shares Outstanding, and mailing address (F) each Securityholder’s Pro Rata Share of the Escrow Amount and Expense Fund expressed as a percentage; and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(iv) (A) the aggregate amount identity and mailing address of cash each record holder of the Company Securities, and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (B) each Equityholder’s Pro Rata Portion 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 Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) Working Capital Statement and the date that each Equityholder acquired Allocation Certificate, which, when approved by the shares of Company Common Stock and Company Preferred Stock Common or Preferred Stock andBuyer, if acquired after January 1, 2011, the cost basis of such shares.
(b) The Company shall promptly deliver to Parent such further information with respect to the calculations be used for purposes of the Allocation Certificate as Parent may reasonably request. The Allocation Certificate shall payments to be deemed the definitive calculation of the amounts payable made at Closing, though remain subject to the Equityholders and Option Holders, in connection with the Merger and the disbursement thereof, except with respect adjustment pursuant to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameSection 1.7(c) (Post-Closing True-Up).
Appears in 1 contract
Samples: Exhibit Agreement (PTC Inc.)
Allocation Certificate. (a) Three Business Days prior Prior to or on the Closing Datedate hereof, the Company shall deliver delivered to Parent (the date of such delivery, the “Allocation Date”) a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closingdate hereof, of:
(i) the Company’s good faith estimate of the Closing Adjustment (the “Estimated Closing Adjustment”), including individual estimates of each of the items of the Closing Adjustment, including each element of such item, and a description thereof;
(ii) (A) the Company’s calculation of the Merger Consideration, the number of Outstanding Shares, Outstanding Series A Preferred Shares, Series A Preferred Preference Amount, Aggregate Consideration Value, (B) Residual Amount and the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company WarrantResidual Amount, in each case based upon the Estimated Closing Adjustment;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder Shareholder as set forth in the Company’s records;; and
(iv) (A) the aggregate amount of cash and stock consideration Merger Consideration payable or issuable to each Equityholder and Option Holder Shareholder after the Effective Time, (B) each EquityholderShareholder’s Pro Rata Portion of the Escrow Amount, Indemnity Holdback (C) each Shareholder’s Pro Rata Portion of the Initial Payment payable to each Shareholder pursuant to Section 2.03(b) and (CD) any required withholding (if any) with respect to each Equityholder and Option HolderShareholder, in each case, as applicable, case based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the 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.
(b) 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 HoldersShareholders, in connection with the Merger and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this AgreementSection 2.06. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
Appears in 1 contract
Allocation Certificate. At least three (a3) Three Business Days prior to the Closing Date, the Company shall deliver to Parent the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Financial Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as on behalf of the Closing, ofCompany and its Subsidiaries that the following are good faith estimates of the Company:
(i) the Company’s good faith estimate of the an estimated Closing Adjustment Balance Sheet;
(ii) a statement (the “Estimated Closing AdjustmentWorking Capital Statement”);
(ii) (A) the Company’s calculation of the Aggregate Consideration ValueEstimated Net Working Capital of the Company and an estimate of the Net Working Capital Deficiency or the Net Working Capital Surplus, (B) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the which Estimated Closing AdjustmentWorking 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 name Estimated Company Debt not paid as of immediately prior to the Effective Time, including a description and mailing address amount for each element thereof, and, for each item of Estimated Company Debt that is not Retained Debt, payoff letters, in form and substance 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 availablesuch Company Debt is secured, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s recordsan 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;
(A) the aggregate amount of cash all Change in Control Payments, together with a description and stock consideration the amount of each element thereof and (B) any Change in Control Payments that are due and payable or issuable to in connection with the Closing, together with a description and the amount of each Equityholder element thereof;
(vi) the Company’s estimate of aggregate Closing Cash;
(vii) the Company’s estimate of the Closing Cash Merger Consideration, the Adjustment Escrow Cash, the Adjustment Escrow Shares and Option Holder after the Effective TimeNet Closing Share Merger Consideration, and (A) the number of Units outstanding and the number of Units underlying outstanding Company Warrants (based on a cashless exercise), (B) the applicable portion of the Closing Cash Merger Consideration and the Net Closing Share Merger Consideration payable to each EquityholderSecurityholder, (C) each Securityholder’s Pro Rata Portion Share of the Milestone Shares expressed as a percentage, and (D) each Securityholder’s Pro Rata Share of each of the Escrow Amount, Fund and (C) any required withholding (if any) with respect to each Equityholder the Expense Fund expressed as a percentage and Option Holder, in each casea share or dollar amount, as applicable, based upon the Estimated Closing Adjustment; and
(vviii) the date that (A) identity and mailing address (and email address, to the extent available) of each Equityholder acquired Securityholder and (B) wire instructions for the 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.
(b) Company. The Company shall promptly deliver give the Buyer timely access to Parent such further information with respect to the calculations all supporting records and work papers used in preparation of the Closing Balance Sheet, Estimated Closing Working Capital Statement and Allocation Certificate as Parent may reasonably requestCertificate. The Company 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 deemed subject to the definitive calculation Buyer’s approval prior to the Closing (not to be unreasonably withheld, conditioned or delayed) and shall be prepared in accordance and full compliance with the terms and conditions of the amounts payable Company’s organizational documents then in effect and any other applicable Contracts governing the distribution of equity proceeds to the Equityholders and Option Holdersany Securityholder, in connection with the Merger and the disbursement thereofParent, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent the Buyer and the Surviving Company shall each be entitled to rely upon and shall incur no liability as a result of its reliance on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility delivered by the Company (or liability on account of its acting in accordance with sameany updates or supplements thereto delivered by the Company prior to the Closing).
Appears in 1 contract
Allocation Certificate. (a) Three At least two Business Days prior to the Closing Date, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying as to on behalf of the accuracy and completenessCompany certifying, in each case as of the Closing, ofas to:
(i) the Company’s good faith estimate of the Closing Adjustment an estimated consolidated unaudited balance sheet (the “Estimated Closing AdjustmentDate Balance Sheet”) of the Company and its Subsidiaries as of 11:59 p.m., Eastern time, on the Closing Date, which Estimated Closing Date Balance Sheet shall (x) be substantially in the form of the Company Balance Sheet, (y) be prepared in accordance with GAAP on a basis consistent with and utilizing the same principles, practices and policies as those used in preparing the Company Balance Sheet (except for the absence of footnotes) and (z) set forth the Company’s estimate of (A) the Working Capital (the “Estimated Working Capital”), (B) the Working Capital Deficiency, if any, and (C) the Debt (the “Estimated Debt”), in each case as of 11:59 p.m., Eastern time, on the Closing Date and as derived from the Estimated Closing Date Balance Sheet;
(ii) the estimated aggregate Acquisition Expenses, together with a description and the amount of each element thereof (Ai.e., legal, accounting, investment banking);
(iii) the Company’s calculation of the Aggregate Consideration ValueMerger Consideration, (B) using the amount Estimated Debt and the Estimated Working Capital to determine the Debt and the Working Capital Deficiency, if any, for purposes of cash and stock consideration payable or issuable such calculation pursuant to Section 2.03(a) in respect of each share of Company Common Stock and Company Preferred Stock, (C) the applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records2.6(a);
(iv) (A) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (B) each EquityholderCompany’s Pro Rata Portion calculation of the Escrow Amountnumber of shares of Fully Diluted Common Stock Outstanding, the Aggregate Option Exercise Price, the Per Share Merger Consideration, and (C) any required withholding (if any) with respect to each Equityholder and the Aggregate Assumed Company Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; andValue;
(v) (x) the date that identity and mailing address of each Equityholder acquired record holder of Company Capital Stock and the number of shares of Company Common Stock and Company Preferred Stock Common or Preferred held by each such Stockholder and (y) the identity and mailing address of each holder of a Company Stock and, if acquired after January 1, 2011Right, the cost basis number and type of shares of Company Capital Stock subject to the Company Stock Rights held by such holder, the date of grant, the exercise prices and vesting schedules thereof, the number and type of shares of Company Capital Stock subject to each Company Stock Right that will be vested and exercisable as of the Closing, and whether such Company Stock Right is qualified as an “incentive stock option” under section 422 of the Code; and
(vi) (x) each Stockholder’s Pro Rata Share of the Escrow Amount; (y) the amount of the Merger Consideration to be paid to each Stockholder net of such shares.
Stockholder’s Pro Rata Share of the Escrow Amount with respect to each Certificate held by such Stockholder and the amount of the Cash Consideration and the Stock Consideration with respect to each such Certificate; and (bz) The Company shall promptly deliver to Parent such further information the amount of the required Tax withholding (if any), including with respect to the calculations Transaction Bonus Plan, with respect to each Stockholder. Parent shall be given timely access to all supporting workpapers used in the preparation of the Estimated Closing Date Balance Sheet and the Allocation Certificate, which Allocation Certificate, when accepted or deemed accepted by Parent, shall be deemed final for purposes of the Closing and serve as the basis for calculating the payments to be made on the Closing Date and each Stockholder’s Pro Rata Share. Unless Parent shall have objected to the Allocation Certificate as Parent may reasonably request. The delivered by the Company, the Allocation Certificate shall be deemed the definitive calculation accepted by Parent as of the amounts payable Closing. If Parent objects to the Equityholders and Option Holders, in connection with the Merger and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and delivered by the Company, the parties hereto shall use good faith efforts to agree upon such disbursements shall have no responsibility or liability on account a final form of its acting in accordance with sameAllocation Certificate before Closing.
Appears in 1 contract
Allocation Certificate. At least three (a3) Three Business Days prior to the Closing Date, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying on behalf of the Company as to the accuracy and completeness, in each case as of the Closing, of:
(i) an estimated unaudited consolidated balance sheet (the “Closing Balance Sheet”) of the Company and the Subsidiaries as of the Closing Date 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 outstanding as of the 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;
(iii) 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 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 good faith 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 the Company as of the Closing Adjustment (the “Estimated Closing AdjustmentWorking Capital Amount”);
(ii) (A) 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 Consideration ValueOption 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/or Company Preferred 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 Capital 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; and
(Bix) the amount 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, (Cv) the applicable Per Share Option Closing Date Merger Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(iv) (A) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (B) each Equityholderwithout reduction for such Holder’s Pro Rata Portion 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 Escrow Amount; (x) each Holder’s Pro Rata Share of the Escrow Amount and Expense Escrow Amount, expressed as a dollar amount and as a percentage; (Cy) any required withholding (if any) with respect to each Equityholder Holder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(vz) the date that each Equityholder acquired the 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.
(b) The Company shall promptly deliver to Parent such further information with respect to each holder of vested Company Options, (1) the calculations Option Cancellation Amount payable to such holder without reduction for such holder’s Pro Rata Share of the Allocation Certificate as Parent may reasonably request. The Allocation Certificate shall Escrow Amount or Expense Escrow Amount; (2) the Option Cancellation Amount to be deemed the definitive calculation paid to such holder net of such Holder’s Pro Rata Share of the amounts payable to Escrow Amount and Expense Escrow Amount; (3) such holder’s Pro Rata Share of the Equityholders Escrow Amount and Expense Escrow Amount, expressed as a dollar amount and as a percentage of the Option Holders, in connection with the Merger Cancellation Amount; and the disbursement thereof, except (4) any required withholding (if any) with respect to such adjustments as may otherwise be provided under this Agreementholder’s Option Cancellation Amount. The Company shall give Parent shall be entitled timely access to rely on all supporting work papers used in the preparation of the Closing Balance Sheet and the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameCertificate.
Appears in 1 contract
Allocation Certificate. (a) Three Business Days prior Prior to or on the Closing Datedate hereof, the Company shall deliver delivered to Parent (the date of such delivery, the “Allocation Date”) a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closingdate hereof, of:
(i) the Company’s good faith estimate of the Closing Adjustment (the “Estimated Closing Adjustment”), including individual estimates of each of the items of the Closing Adjustment, including each element of such item, and a description thereof;
(ii) (A) the Company’s calculation of the Aggregate Consideration ValueMerger Consideration, (B) the amount number of cash Outstanding Shares 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing AdjustmentMerger Consideration;
(iii) the name identity and mailing address and, if available, e-mail address, of each Equityholder and Option Holder Shareholder as set forth in the Company’s records;; and
(iv) (A) the aggregate amount of cash and stock consideration Per Share Merger Consideration payable or issuable to each Equityholder and Option Holder Shareholder after the Effective Time, (B) each EquityholderShareholder’s Pro Rata Portion of the Escrow AmountIndemnity Holdback and the Earn-Out Amount (expressed as dollar amounts and as a percentage), (C) each Shareholder’s Pro Rata Portion of the Initial Payment payable to each Shareholder pursuant to Section 2.03(b)(i), and (CD) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the 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 sharesShareholder.
(b) 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 HoldersShareholders, in connection with the Merger and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this AgreementSection 2.06. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Callidus Software Inc)
Allocation Certificate. (a) Three At least three (3) Business Days prior to the Closing Dateand concurrently with the delivery of the Estimated Closing Statement, the Company shall prepare and deliver to Parent a spreadsheet setting forth, as of immediately prior to the Effective Time, each of the following:
(i) the names and email addresses of all Securityholders and the number of Shares and Company Options (including calculations of each Securityholder’s Cashed Out Portion and Assumed Portion) (and their respective exercise prices) held by such Persons;
(ii) detailed calculations of the Closing Merger Consideration, Fully Diluted Share Number, the Per Share Cash Consideration and the Per Share Stock Consideration;
(iii) the aggregate Indebtedness together with a description and the amount of each element thereof;
(iv) the amount of:
(A) each Securityholder’s portion (as a percentage interest and the interest in dollar terms) of the Closing Merger Consideration and the aggregate amount of Cash Consideration and Share Consideration payable and issuable to such Securityholder, respectively;
(B) each Shareholder’s Shareholder Pro Rata Share of the amount to be contributed to the Post-Closing Adjustment Escrow Shares Fund;
(C) with respect to each Securityholder, any required cost basis reporting information under Section 6045 of the Code that Parent may need to provide to the Exchange Agent pursuant to the Exchange Agent Agreement, to the extent reasonably available to the Company; and
(D) any required withholding (if any) with respect to each Person to whom any payment shall be due and payable in connection with the Closing.
(v) A Flow of Funds Memorandum with respect to payments to be made by or on behalf of Parent, the Company or the Surviving Company on the Closing Date in connection with the Mergers, including the wire instructions for each Person to whom any payment shall be due and payable in connection with the Closing.
(b) The Company shall, at or prior to the Closing, deliver a certificate (such certificate and the items set forth in this Section 2.21 being collectively referred to as the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company and the Vice President of Finance of the Company, each in their capacity as such, certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate of each of the Closing Adjustment (the “Estimated Closing Adjustment”);
(ii) (A) the Company’s calculation of the Aggregate Consideration Value, (B) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as items set forth in the Company’s records;
(iv) (A) Allocation Certificate in conformity with the aggregate amount requirements of cash and stock consideration payable or issuable this Section 2.21. Subject to each Equityholder and Option Holder after the Effective TimeSection 2.19, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the 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.
(b) The Company shall promptly deliver to Parent such further information with respect to the calculations of the Allocation Certificate as when in form and substance reasonably satisfactory to and approved by Parent may reasonably request. The Allocation Certificate shall be deemed the definitive calculation of the all amounts owed and payable to the Equityholders and Option Holders, Securityholders in connection with the Merger Mergers and the disbursement disbursements thereof. The parties agree that Parent, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent Merger Sub 1 and Merger Sub 2 shall be entitled to rely on the Allocation Certificate in making payments under this Article II and Parent, Merger Sub 1 and Merger Sub 2 shall not be responsible for all the calculations or the determinations regarding such disbursements calculations in such Allocation Certificate (unless and upon to the extent any such disbursements shall have no responsibility calculations are included in the Allocation Certificate at the request or liability on account direction of its acting Parent).
(c) To the extent the Allocation Certificate specifies with respect to a Shareholder the Cash Consideration and/or Share Consideration to be received in accordance with samerespect of particular shares of Company Common Stock held by such Shareholder, the parties agree to treat such specification as part of the terms of the Merger for purposes of Treasury Regulation Section 1.356-1(b).
Appears in 1 contract
Samples: Merger Agreement (ChaSerg Technology Acquisition Corp)
Allocation Certificate. At least three (a3) Three Business Days prior to the Closing Date, the Company shall deliver to Parent the Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Financial Officer of the Company Company, setting forth and certifying as to the accuracy and completeness, in each case as on behalf of the Closing, ofCompany that the following are good faith estimates of the Company:
(i) the Company’s good faith estimate of the an estimated Closing Adjustment Balance Sheet;
(ii) a statement (the “Estimated Closing AdjustmentWorking Capital Statement”);
(ii) (A) the Company’s calculation of the Aggregate Consideration ValueEstimated Net Working Capital of the Company and an estimate of the Net Working Capital Deficiency or the Net Working Capital Surplus, (B) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the which Estimated Closing AdjustmentWorking 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 name Estimated Company Debt not paid as of immediately prior to the Effective Time, including a description and mailing address amount for each element thereof, together with payoff letters, in form and substance satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if availablesuch Company Debt is secured, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s recordsan 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 cash all Change in Control Payments, together with a description and stock consideration the amount of each element thereof and (B) any Change in Control Payments that are due and payable or issuable in connection with the Closing, together with a description and the amount of each element thereof;
(vii) the Company’s estimate of aggregate Closing Cash;
(viii) the Company’s estimate of the Closing Cash Merger Consideration and the Closing Share Merger Consideration, and (A) the applicable portion of the Closing Cash Merger Consideration and the Closing Share Merger Consideration payable to each Equityholder Member, and Option Holder after (B) each Member’s Pro Rata Share of the Effective TimeEscrow Amount 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 Equityholder’s Pro Rata Portion of the Escrow Amount, Member and (C) any required withholding (if any) with respect wire instructions for each Member. The Company shall give the Buyer timely reasonable access to each Equityholder all supporting records and Option Holder, work papers used in each case, as applicable, based upon preparation of the Estimated Closing Adjustment; and
(v) Working Capital Statement and Allocation Certificate, which, when in form and substance reasonably satisfactory to and approved by the date that each Equityholder acquired the shares of Company Common Stock and Company Preferred Stock Common or Preferred Stock andBuyer, if acquired after January 1, 2011, the cost basis of such shares.
(b) The Company shall promptly deliver to Parent such further information with respect to the calculations be used for purposes of the Allocation Certificate as Parent may reasonably requestpayments to be made at Closing, though remain subject to adjustment pursuant to Section 1.7(b) (Post-Closing True-Up). The Allocation Certificate shall be deemed subject to the definitive calculation Buyer’s approval prior to the Closing (not to be unreasonably withheld, conditioned or delayed) and shall be prepared in accordance and full compliance with the terms and conditions of the amounts payable Company’s organizational documents then in effect and any other applicable Contracts governing the distribution of equity proceeds to the Equityholders and Option Holdersany Member, in connection with the Merger and the disbursement thereofParent, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent the Buyer and the Surviving Company shall each be entitled to rely upon and shall incur no liability as a result of its reliance on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility delivered by the Company (or liability on account of its acting in accordance with sameany updates or supplements thereto delivered by the Company prior to the Closing).
Appears in 1 contract
Allocation Certificate. At least three (a3) Three Business Days prior to the Closing Date, the Company shall deliver to Parent 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 certifying on behalf of the Company as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith 's estimate of the Closing Adjustment (aggregate Acquisition Expenses, to the “Estimated Closing Adjustment”)extent not paid as of the Closing, together with a description and the amount of each element thereof and the wire instructions for each Person to whom such a payment in respect thereof shall be made in connection with the Closing;
(ii) (A) the Company’s calculation 's estimate of the Aggregate Consideration Valueaggregate Indebtedness of the Company and the Subsidiaries to the extent not paid as of the Closing, (B) together with a description and the amount of cash each element thereof, together with payoff letters in form and stock consideration payable or issuable pursuant substance reasonably satisfactory to Section 2.03(a) Buyer with respect to each item of Indebtedness indicating the amount necessary to discharge such Indebtedness in respect of each share of Company Common Stock and Company Preferred Stock, (C) the applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustmentfull at Closing;
(iii) the name estimated amount of Net Working Capital as of the Closing Date (the "Estimated Closing Net Working Capital"), and mailing address andthe Estimated Working Capital Adjustment, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s recordsany;
(iv) (A) 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 cash such Change in Control Payments subject to withholdings, and stock consideration 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 issuable to each Equityholder and Option Holder after the Effective Time, Closing Date;
(Bv) the Company's estimate of the aggregate amount payable at Closing in respect of (a) each Equityholder’s Pro Rata Portion holder of the Escrow AmountCompany Phantom Units (each, a "Phantom Unitholder"), and (Cb) 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 calculation of the Estimated Purchase Price;
(vii) the amount of any required withholding (if any) with respect to Seller, each Equityholder Phantom Unitholder and Option each SAR Holder;
(viii) the Company's estimate of the aggregate Other Payments, in together with a description and the amount of each caseelement thereof and, as to the extent applicable, based upon the Estimated wire instructions for each Person to whom an Other Payment shall be due and payable following the Closing Adjustmentdate; and
(vix) the date that each Equityholder acquired the shares of Company Common Stock wire instructions, mailing address and Company Preferred Stock Common or Preferred Stock and, if acquired after January 1, 2011, the cost basis of such shares.
(b) bank account information for Seller. The Company shall promptly deliver give Buyer timely access to Parent such further information with respect to all supporting workpapers used in the calculations preparation of the Estimated Closing Net Working Capital and the Allocation Certificate as Parent may reasonably request. The Certificate, which Allocation Certificate Certificate, when approved by Buyer, shall be deemed the definitive calculation of the amounts Estimated Purchase Price payable to the Equityholders and Option Holders, in connection with the Merger Transactions and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
Appears in 1 contract
Samples: Stock Purchase Agreement (PTC Inc.)
Allocation Certificate. At least four (a4) Three Business Days prior to the Closing Date, the Company shall deliver to Parent Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying on behalf of the Company as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate aggregate Acquisition Expenses, to the extent not paid as of immediately prior to the Closing Adjustment (Closing, together with a list of each payee and the “Estimated Closing Adjustment”)amount of each element thereof;
(ii) (A) the Company’s calculation aggregate Indebtedness of the Aggregate Consideration ValueCompany and the Subsidiaries as of the Closing, (B) including a separate listing of the aggregate amount of Permitted Indebtedness, together with a list of each payee and the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustmentelement thereof;
(iii) the name aggregate Change in Control Payments as of the Closing, together with a list of each payee and mailing address the amount of each element thereof and, if availableto the extent not subject to tax withholdings, e-mail address, of the wire instructions for each Equityholder Person to whom a Change in Control Payment shall be due and Option Holder as set forth in payable on or after the Company’s recordsClosing Date;
(iv) a listing of Historic Severance Payments, together with a list of each payee and the amount of each element thereof 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;
(Av) the aggregate amount of cash all Mxxxxx Payments as of the Closing Date and, to the extent applicable, wire instructions for the Mxxxxx 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 stock consideration payable or issuable to each Equityholder and Option Holder after the Effective TimeEstimated Series B Share Payment Amount;
(viii) the allocation of the Purchase Price, (B) each Equityholder’s Pro Rata Portion 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);
(Cix) 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 Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing AdjustmentSeller; and
(vxii) the date that wire instructions, mailing address and bank account information for each Equityholder acquired the 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.
(b) Seller. The Company shall promptly deliver give Buyer timely access to Parent such further information with respect to all supporting workpapers used in the calculations preparation of the Estimated Closing Balance Sheet, the Allocation Certificate as Parent may reasonably requestand the Closing Financials Certificate. The 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 Bxxxx and certified to by the Company, it shall be deemed the definitive calculation by each of the amounts Sellers of the Purchase Price payable to the Equityholders and Option Holders, in connection with the Merger Transactions and the disbursement thereof, except with respect subject to such adjustments adjustment only as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements in Sections 1.3, 1.5 and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same1.6.
Appears in 1 contract
Samples: Stock Purchase Agreement (Parametric Technology Corp)
Allocation Certificate. (a) Three Business Days prior to On the Closing Date, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company in form reasonably acceptable to Parent (the "Allocation Certificate") signed by the Chief Executive Officer or Chief Financial Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closing, ofof the following:
(i) the Company’s good faith estimate of the Closing Adjustment (the “Estimated Closing Adjustment”);
(ii) (A) the Company’s calculation of the Aggregate Consideration Value, (Ba) the amount of cash and stock consideration payable or issuable pursuant to Section 2.03(a(i) in respect of each share of Company Common Stock and Company Preferred Stock, Closing Cash; (Cii) the applicable Per Share Option Consideration in respect unpaid Indebtedness of each the Company Stock Option at Closing; and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment;
(iii) the name Company Transaction Expenses;
(b) calculation of the Initial Merger Consideration (as adjusted pursuant to Section 2.2), the Fully Diluted Share Number, and mailing address andthe Per Share Initial Consideration;
(c) for each Company Holder as of the Closing Date, if availablein each case, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(iv) : (A) name and address of such Company Holder and whether such Company Holder is an employee of the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective TimeCompany, (B) each Equityholder’s Pro Rata Portion the number and class of shares of Company Capital Stock held by such Company Holder, including, for holders of Company Restricted Stock, the Escrow Amountrelated schedule of release from the forfeiture condition, and (C) any required withholding (if any) with respect to each Equityholder the number and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the class of shares of Company Common Capital Stock subject to each Company Option held by such Company Holder, and Company Preferred Stock Common or Preferred Stock and, if acquired after January 1, 2011applicable, the cost basis exercise price per share, and the exercise or vesting schedules thereof, (D) a calculation of the amount payable at Closing to such Company Holder pursuant to the terms and conditions of this Agreement, (E) a calculation of the number of shares of Nice Ltd. Ordinary Shares for which any Assumed Company Option held by such Company Holder may be exercised by such Company Holder and the exercise price per share of such shares.
Assumed Company Option; and (bF) The the aggregate contribution to be made to the Escrow Fund and the Stockholder Representative Expense Amount by such Company Holder. On or prior to the Closing Date, an officer of the Company shall promptly deliver to Parent such further information with respect to certify on behalf of the calculations of Company that the Allocation Certificate as Parent may reasonably request. The complies in all respects with this Section 2.6 and such Allocation Certificate shall be deemed to be the definitive calculation of the all amounts payable to the Equityholders and Option Company Holders, in connection with the Merger and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
Appears in 1 contract
Samples: Sale and Purchase of Shares Agreement (Nice Systems LTD)
Allocation Certificate. At least two (a2) Three Business Days prior to the Closing Date, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying as to the accuracy and completenesscertifying, in each case as of the Closing, ofas to:
(i) the Company’s good faith estimate of the Closing Adjustment an estimated consolidated unaudited balance sheet (the “Estimated Closing AdjustmentDate Balance Sheet”)) of the Company and its Subsidiaries as of the Closing Date, which shall (x) be substantially in the form of the Company Balance Sheet, (y) be prepared in accordance with GAAP on a basis consistent with and utilizing the same principles, practices and policies as those used in preparing the Company Balance Sheet and (z) set forth the Company’s estimate of the Working Capital (the “Estimated Working Capital”) as of the Closing Date derived therefrom;
(ii) the aggregate Acquisition Expenses, together with a description and the amount of each element thereof;
(Aiii) the Company’s calculation of the Aggregate Consideration ValueMerger Consideration, (B) using the amount Estimated Working Capital to determine the Working Capital Deficiency, as applicable, for purposes of cash and stock consideration payable or issuable such calculation pursuant to Section 2.03(a2.6(a);
(iv) in respect the Company’s calculation of the number of shares of Fully Diluted Common Stock Outstanding, the Aggregate Option Exercise Price, the Per Share Common Merger Consideration and the Aggregate Assumed Company Option Value;
(v) (x) the identity and mailing address of each share record holder of Company Capital Stock and the number of shares of Company Common Stock and Company Preferred Stock, Stock held by each such Stockholder and (Cy) the applicable Per Share Option Consideration in respect identity and mailing address of each holder of a Company Stock Right, the number of shares of Company Common Stock subject to the Company Stock Rights held by such holder, the date of grant, the exercise prices and vesting schedules thereof, the number of shares of Company Common Stock subject to each Company Stock Option Right that will be vested and (D) exercisable as of the applicable Per Share Warrant Consideration in respect Closing, and whether such Company Stock Right is qualified as an “incentive stock option” under section 422 of each Company Warrant, in each case based upon the Estimated Closing Adjustment;Code; and
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(ivvi) (A) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (Bx) each EquityholderStockholder’s Pro Rata Portion Share of the Escrow Amount, ; (y) the amount of the Merger Consideration to be paid to each Stockholder net of such Stockholder’s Pro Rata Share of the Escrow Amount with respect to each Certificate held by such Stockholder; and (Cz) any the amount of the required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the 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.
(b) 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 and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this AgreementStockholder. Parent shall be entitled given timely access to rely all supporting workpapers used in the preparation of the Estimated Closing Date Balance Sheet and the Allocation Certificate, which certificate, when accepted by Parent, shall be deemed to be final for purposes of the Closing and serve as the basis for calculating the payments to be made on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameClosing Date.
Appears in 1 contract
Allocation Certificate. (a) Three Business Days On the Closing Date prior to the Closing DateEffective Time, the Company shall deliver to Parent a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying as to the accuracy and completenesscertifying, in each case as of the Closing, of:
(ia) the Company’s good faith estimate of the Closing Adjustment (the “Estimated Closing Adjustment”);
(ii) (A) the Company’s calculation of the Aggregate Consideration Value, (B) the amount of cash and stock consideration payable or issuable pursuant to Section 2.03(a) in respect identity of each share record holder of Company Common Stock and Company Preferred Stock, (C) the applicable Per Share Option Consideration in respect number of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustment;
(iii) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(iv) (A) the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after the Effective Time, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the shares of Company Common Stock and held by each such holder; (b) the identity of each record holder of Company Preferred Stock Common or and the number of shares of Company Preferred Stock and, if acquired after January 1, 2011held by each such holder; (c) the identity of each holder of Company Options, the cost basis number and type of Company Capital Stock covered by such shares.
(b) The Company shall promptly deliver Options, the exercise prices and vesting schedules thereof, the number and type of Company Capital Stock subject to Parent each such further information with respect to the calculations 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; (d) the address of record of each Company Holder; and (e) the Initial Merger Consideration, Escrow Amount, Closing Adjustment Escrow Amount, Promissory Note Interests, Representative Reimbursement Amount and Contingent Merger Consideration (expressed as a percentage) allocable to each such Company Holder, which Allocation Certificate as when approved by Parent may reasonably request. The Allocation Certificate shall be deemed the definitive calculation allocation of Merger Consideration among the amounts payable to the Equityholders and Option Holders, Company Holders in connection accordance with the Merger and the disbursement disbursements thereof, except including with respect to such adjustments as may otherwise be provided under this Agreementthe Escrow Amount and Representative Reimbursement Amount. Parent shall be entitled to rely on In completing the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account the parties may, by mutual written agreement, make adjustments in the Allocation Certificate to the extent necessary to achieve the intent of its acting the conversion formulas set forth in accordance with sameSection 2.7.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aratana Therapeutics, Inc.)
Allocation Certificate. At least two (a2) Three Business Days prior to the Closing Date, the Company shall deliver to Parent the Buyer a certificate (the “Allocation Certificate”) of the Company 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 completeness, in each case as of the Closingcase, of:
(i) the Company’s good faith estimate of the an estimated Closing Adjustment Balance Sheet;
(ii) a statement (the “Estimated Closing AdjustmentWorking Capital Statement”)) of the Estimated Net Working Capital of the Company, as of 11:59 PM Eastern Time on the date one day prior to the Closing Date, and the Net Working Capital Deficiency based 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;
(iiiii) 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, together with payoff letters, in form and substance satisfactory to the Buyer, indicating the amount necessary to discharge in full such Company Debt at Closing (the “Company Debt Payoff Amount”) and, if 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;
(vi) (A) the Company’s calculation aggregate amount of all Change in Control Payments, together with a description and the Aggregate Consideration Value, 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 cash each element thereof and stock consideration the wire instructions for each Person to whom such a Change in Control Payment shall be due and payable or issuable pursuant to Section 2.03(ain connection with the Closing;
(vii) the Company’s estimate of aggregate Unrestricted Cash;
(viii) the number of shares of Company Common Stock, Company Series A Stock, Company Series B Stock and Company Series C Stock outstanding;
(ix) (A) the Merger Consideration; (B) in respect of each share of the Company Common Stock, the Per Share Net Merger Consideration; (C) in respect of each share of Company Common Stock and Company Preferred Series A Stock, the Per Share Series A Merger Consideration, the Series A Liquidation Preference and the Per Share Net Merger Consideration; (CD) 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 applicable Per Share Option Consideration Aggregate Exercise Amount; (B) in respect of each Company Stock Option, the Per Company Option Merger Consideration and the Per Company Option Net Merger Consideration (Dand the aggregate amounts thereof); (C) the applicable Per Share Warrant Consideration 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 case based upon Company Preferred Warrant, the Estimated Closing AdjustmentCompany Preferred Warrant Merger Consideration and the Company Preferred Warrant Net Merger Consideration (and the aggregate amounts thereof);
(iiixi) (A) the name Fully Diluted Shares Outstanding; and (B) each Securityholder’s Pro Rata Share of the Escrow Amount and Expense Fund expressed as a percentage and a dollar amount; and
(A) the identity and mailing address and, if available, e-mail (and email address, to the extent available) of each Equityholder record holder of the Company Securities and Option Holder type of Company Securities and 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 Company’s records;
(iv) (A) Carve-Out Allocation and the aggregate amount of cash and stock consideration payable or issuable to each Equityholder and Option Holder after such award, together with the Effective Time, (B) each Equityholder’s Pro Rata Portion amount of the Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder such recipient, and Option Holder, in each case, as applicable, based upon (C) wire instructions for the Estimated Closing Adjustment; and
(v) the date that each Equityholder acquired the 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.
(b) Company. The Company shall promptly deliver give the Buyer timely access to Parent such further information with respect to the calculations all supporting records and work papers used in preparation of the Closing Balance Sheet, Estimated Closing Working Capital Statement and Allocation Certificate as Parent may reasonably request. The Allocation Certificate Certificate, which, when in form and substance satisfactory to and approved by the Buyer, shall be deemed the definitive calculation used for purposes of the amounts payable payments to the Equityholders and Option Holdersbe made at Closing, in connection with the Merger and the disbursement thereof, except with respect though remain subject to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled adjustment pursuant to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with sameSection 1.7(c) (Post-Closing True-Up).
Appears in 1 contract
Allocation Certificate. At least five (a5) Three Business Days prior to the Closing Date, the Company shall deliver to Parent Buyer a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate of the Closing Adjustment an estimated unaudited consolidated balance sheet (the “Estimated Closing AdjustmentDate Balance Sheet”) of the Company and the Subsidiaries as of 11:59 PM Pacific time on the Closing Date, which Estimated Closing Date Balance Sheet shall (1) be substantially in the form of the Company Balance Sheet, (2) be 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 and (3) set forth the Company’s estimate of (A) the Working Capital (the “Estimated Working Capital”), (B) the Working Capital Deficiency or Working Capital Excess, as applicable, and (C) the aggregate Indebtedness of the Company and the Subsidiaries (the “Estimated Indebtedness”), in each case as of 11:59 PM Pacific time on the Closing Date and as derived from the Estimated Closing Date Balance Sheet;
(ii) the aggregate unpaid Acquisition Expenses, together with a description and the amount of each element thereof and check mailing and wire instructions with respect to each element thereof, including the amount of each Banker Fee;
(Aiii) an itemization of each element of the Estimated Indebtedness, including the Loans;
(iv) the Company’s calculation of the Merger Consideration, the Fully Diluted Common Stock Outstanding, the Aggregate Consideration ValueOption Exercise Price, the Aggregate Warrant Exercise Price, the Per Share Merger Consideration, the number of Company Warrants, the aggregate amount of all Company Warrant Payments, the number of Company Options, and the aggregate amount of all Company Option Payments;
(B1) the amount of cash identity and stock consideration payable or issuable pursuant to Section 2.03(a) in respect mailing address of each share record holder of Company Capital Stock and the number and type of shares of Company Capital Stock held by each such Stockholder; (2) the identity and mailing address of record of each holder of a Company Option, the number of shares of Company Common Stock subject to the Company Options held by such holder, the date of grant, the exercise prices and vesting schedules thereof, and the number of shares of Company Preferred Stock, Common Stock subject to each Company Option that is qualified as an “incentive stock option” under Section 422 of the Code; and (C3) the applicable Per Share Option Consideration in respect identity and mailing address of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect record holder of each a Company Warrant, in each case based upon the Estimated Closing Adjustmentnumber and type of shares of Company Capital Stock subject to the Company Warrants held by such holder, and the date of grant, the exercise prices and vesting schedules (if applicable) thereof;
(iiivi) (1) the name and mailing address and, if available, e-mail address, of each Equityholder and Option Holder as set forth in the Company’s records;
(iv) (A) the aggregate amount of cash and stock consideration payable or issuable Merger Consideration to be paid to each Equityholder and Option Holder after the Effective Time, Stockholder (B) each Equityholdernet of such Stockholder’s Pro Rata Portion Share of the Indemnification Escrow Amount, the Special Litigation Escrow Amount and (C) any required withholding (if anythe Holder Representative Escrow Amount) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing AdjustmentCertificate held by such Stockholder; and
(v2) the date that Merger Consideration to be paid to each Equityholder acquired the 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.
(b) The Company shall promptly deliver to Parent such further information Stockholder with respect to the calculations each Certificate held by such Stockholder (inclusive of such Stockholder’s Pro Rata Share of the Allocation Certificate as Parent may reasonably request. The Allocation Certificate shall be deemed Indemnification Escrow Amount, the definitive calculation of the amounts payable to the Equityholders and Option Holders, in connection with the Merger Special Litigation Escrow Amount and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.Holder Representative Escrow Amount); (3) each Holder’s Pro Rata Share;
Appears in 1 contract
Allocation Certificate. On, or one (a1) Three Business Days Day prior to to, the Closing Date, the Company shall deliver have delivered to the Parent a certificate certificate, a copy which is attached as Exhibit C hereto (the “Allocation Certificate”) signed by the Holder Representative (on behalf of the Company signed by Stockholders) and the Chief Executive Officer of the Company certifying as to the accuracy and completeness, in each case as of the Closing, of:
(i) the Company’s good faith estimate of the Closing Adjustment an estimated unaudited balance sheet (the “Estimated Closing AdjustmentBalance Sheet”)) of the Company as of 11:59 PM Eastern time on the Closing Date 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) (A) a statement of the aggregate Acquisition Expenses to be paid out of the Cash Reserve together with a statement certifying that all other Acquisition Expenses have been paid-in-full and that the services of each third party that provided any services to the Company or, to the Company’s calculation Knowledge, the Company Stockholders related to the Transactions have been terminated effective as of the Aggregate Consideration ValueClosing Date (provided that, with respect to any such Acquisition Expenses, the Company shall provide to the Parent, as reasonably requested, paid-in-full receipts (Bor other documentation reasonably satisfactory to the Parent) the amount 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 applicable Per Share Option Consideration in respect of each Company Stock Option and (D) the applicable Per Share Warrant Consideration in respect of each Company Warrant, in each case based upon the Estimated Closing Adjustmentfrom any such third party service provider evidencing that such Acquisition Expenses have been paid-in-full and/or services terminated);
(iii) the name aggregate Cash as of the Closing, which shall equal no less than $300,000 (the “Cash Reserve”), and mailing address and, if available, e-mail address, which shall be subject to the provisions of each Equityholder and Option Holder as set forth in the Company’s recordsSection 5.15;
(iv) 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, the Per Share Series A Closing Consideration with respect to each outstanding share of Series A Preferred Stock, the Series A Liquidation Preference with respect to each outstanding share of Series A Preferred Stock (including each element thereof), and the Aggregate Series A Liquidation Preference;
(v) the identity and mailing address of each record holder of Company Capital Stock and the number and type of shares of Company Capital Stock and share certificate numbers held by each such Company Stockholder;
(vi) the amount of: (A) the aggregate amount of cash and stock consideration Closing Consideration payable or issuable to each Equityholder Company Stockholder; and Option Holder after the Effective Time, (B) each Equityholder’s Pro Rata Portion of the Escrow Amount, and (C) any required withholding (if any) with respect to each Equityholder and Option Holder, in each case, as applicable, based upon the Estimated Closing AdjustmentCompany Stockholder; and
(vvii) the date that Pro Rata Share of each Equityholder acquired the shares of Company Common Stock Stockholder and Primary Company Preferred Stock Common or Preferred Stock and, if acquired after January 1, 2011, the cost basis of such shares.
(b) Stockholder. The Company shall promptly deliver have given the Parent timely access to Parent such further information with respect to all supporting work-papers used in the calculations preparation of the Allocation Certificate as Parent may reasonably requestand the underlying documents. The calculation of the Merger Consideration as set forth in the Allocation Certificate Certificate, when in form and substance satisfactory to and approved by the Parent (which approval shall in no way limit the indemnification obligations of the Primary Company Stockholders pursuant to Section 8.2(d)), shall be deemed the definitive calculation of the amounts Merger Consideration payable to the Equityholders and Option Holders, Company Stockholders in connection with the Merger and the disbursement thereof, except with respect to such adjustments as may otherwise be provided under this Agreement. Parent shall be entitled to rely on the Allocation Certificate for all such disbursements and upon such disbursements shall have no responsibility or liability on account of its acting in accordance with same.
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