Common use of Allocation Certificate Clause in Contracts

Allocation Certificate. On 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, in each case as of the Closing, (A) the identity of each record holder of Company Common Shares (other than Company Restricted Stock) and the number of Company Common Shares held by each such Stockholder; (B) the identity of each record holder of Company Preferred Shares and the number of Company Preferred Shares held by each such Stockholder; (C) the identity of each record holder of a Participating Stock Right, the number and type of Company Capital Shares covered by such Participating Stock Rights held by such holder, the exercise prices and vesting schedules thereof, the number and type of Company Capital Shares subject to each such Participating Stock Right that will be exercisable as of the Closing, and whether such Participating Stock Right is intended to be qualified as an “incentive stock option” under Section 422 of the Code; (D) the identity of each record holder of Company Restricted Stock, the number of Company Common Shares held by such Stockholder and the vesting schedules thereof; (E) the address of record of each holder of Company Capital Shares, each holder of Participating Stock Rights and each holder of Company Restricted Stock; (F) the Merger Consideration and Escrow Amount allocable to each such holder; and (G) the amounts required to be deducted and withheld (other than in respect of backup withholding) from the consideration otherwise payable to each such holder with respect to the payments or any other Tax withholding obligation in respect of the Merger or the exercise or settlement of any Company Stock Right or the vesting of restricted stock under the Code or any other Tax Law, which Allocation Certificate when approved by Parent shall be deemed the definitive allocation of Merger Consideration among the Participating Holders in accordance with the Merger and the disbursements thereof, including with respect to the Escrow Amount. In the event of a Closing Indebtedness Payment or that Parent elects to pay cash in lieu of shares of Parent Common Stock in accordance with Section 1.6, in completing the Allocation Certificate the parties may, by mutual written agreement, make adjustments in the Allocation Certificate to the extent necessary to achieve the intent of the conversion formulas set forth in this Section 1.6.

Allocation Certificate. On the Closing Date, the (a) The Company shall will prepare and deliver to Parent at least ten Business Days prior to the Closing Date a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying, in each case a form reasonably acceptable to Parent setting forth (as of immediately prior to the Closing, Effective Time) (Aa) the identity of each record holder of Company Common Shares Capital Stock, Company Options or Company Warrants, (other than Company Restricted Stockb) such holder’s name and the number of Company Common Shares held by each such Stockholderaddress; (Bc) the identity of each record holder of Company Preferred Shares and the number of Company Preferred Shares held by each such Stockholder; (C) the identity of each record holder of a Participating Stock Right, the number and type of Company Capital Shares covered by such Participating Stock Rights held by and/or underlying the Company Options or Company Warrants as of the Closing Date for each such holder, the exercise prices and vesting schedules thereof, (d) the number and type of Company Capital Shares subject to each such Participating Stock Right that will be exercisable as of the Closing, and whether such Participating Stock Right is intended to be qualified as an “incentive stock option” under Section 422 of the Code; (D) the identity of each record holder of Company Restricted Stock, the number of Company Common Shares held by such Stockholder and the vesting schedules thereof; (E) the address of record of each holder of Company Capital Shares, each holder of Participating Stock Rights and each holder of Company Restricted Stock; (F) the Merger Consideration and Escrow Amount allocable to each such holder; and (G) the amounts required to be deducted and withheld (other than in respect of backup withholding) from the consideration otherwise payable to each such holder with respect to the payments or any other Tax withholding obligation in respect of the Merger or the exercise or settlement of any Company Stock Right or the vesting of restricted stock under the Code or any other Tax Law, which Allocation Certificate when approved by Parent shall be deemed the definitive allocation of Merger Consideration among the Participating Holders in accordance with the Merger and the disbursements thereof, including with respect to the Escrow Amount. In the event of a Closing Indebtedness Payment or that Parent elects to pay cash in lieu of shares of Parent Common Stock to be issued to such holder, or to underlie any Parent Option or Parent Warrant to be issued to such holder, pursuant to this Agreement in accordance with Section 1.6respect of the Company Capital Stock, in completing Company Options or Company Warrants held by such holder as of immediately prior to the Effective Time (the “Allocation Certificate”); provided that the Company may update the Allocation Certificate by written notice to Parent at least two days prior to the parties may, by mutual written agreement, make adjustments Closing in the Allocation Certificate event that any holder of Company Options or Company Warrants exercises such Company Options or Company Warrants prior to the extent necessary Effective Time. (b) Parent will prepare and deliver to achieve the intent Parent at least ten Business Days prior to the Closing Date a certificate signed by the Chief Financial Officer of Parent in a form reasonably acceptable to the conversion formulas set Company setting forth (as of immediately prior to the Effective Time) (a) the number of outstanding shares of Parent Common Stock, and (b) each holder of Parent Options and such holder’s name, address and number of shares of Parent Common Stock underlying the Parent Options for each such holder (the “Parent Outstanding Equity Certificate”); provided that Parent may update the Parent Outstanding Equity Certificate by written notice to the Company at least two days prior to the Closing in this Section 1.6the event that any holder of Parent Options exercises such Parent Options prior to the Effective Time.

Allocation Certificate. On Not less than [*] Business Days prior to the Closing Date, the Company shall deliver to Parent a certificate schedule, in the form attached as Annex B hereto (which shall be updated and delivered by the Representative to Parent prior to any payments by Parent of any Additional Consideration after the Closing pursuant to Section 1.10) (the “Allocation Certificate”) of ), prepared by the Company signed by in accordance with the Chief Executive Officer Organizational Documents and the Chief Financial Officer of the Company certifyingthis Agreement and setting forth, in each case as of the Closing, (Ai) the identity name of each record Company Securityholder, (ii) in the case of each Company Securityholder who is a holder of Company Common Shares (other than Company Restricted Stock) and the number of Company Common Shares held by each such Stockholder; (B) the identity of each record holder of Company Preferred Shares and the number of Company Preferred Shares held by each such Stockholder; (C) the identity of each record holder of a Participating Stock Right, the number and type of Company Capital Shares covered by such Participating Stock Rights held by such holder, the exercise prices and vesting schedules thereof, the number and type of Company Capital Shares subject to each such Participating Stock Right that will be exercisable as of the Closing, and whether such Participating Stock Right is intended to be qualified as an “incentive stock option” under Section 422 of the Code; (D) the identity of each record holder of Company Restricted Stock, the number of Company Common Shares shares and designation of each Preferred Stock held by each such Stockholder and Company Securityholder, (iii) in the vesting schedules thereof; case of each Company Securityholder who is a holder of Common Stock, the number of shares of Common Stock held by each such Company Securityholder, (Eiv) in the case of each Company Securityholder who is a holder of Vested Options, the number of Vested Options held by each such Company Securityholder, (v) the email address of record (including physical addresses to the extent available) of such Company Securityholder, (vi) in the case of each Company Securityholder who is a holder of Company Capital SharesPreferred Stock, each holder of Participating Stock Rights and each holder of Company Restricted Stock; (FA) the Merger Per Share Closing Consideration, (B) the Closing Cash Consideration and Escrow Amount (C) the Closing Stock Consideration, in each case, allocable to each such holder; Company Securityholder, (vii) the Closing Cash, (viii) the calculation of the Company Closing Cash Amount and (Gix) a formula for calculating the amounts required Per-Share Additional Consideration potentially payable and allocable to such Company Securityholder. If Parent disagrees with any item set forth in the Allocation Certificate, Parent shall be deducted entitled to provide comments to the Company no later than [*] Business Days prior to the Closing Date, and withheld (other than Parent and the Company shall, in respect of backup withholding) from good faith, use their respective reasonable best efforts to resolve any such requested changes and, to the consideration otherwise payable extent necessary, the Allocation Certificate shall be revised to each reflect any changes to any component thereof mutually agreed to in writing by Parent and the Company prior to the Closing; provided, however, that if any such holder requested changes are not resolved prior to the Closing Date, the Allocation Certificate provided by the Company shall control with respect to any such unresolved requested changes; provided, further, that any failure to resolve such requested changes shall not relieve Parent of its obligation to effect the payments or any other Tax withholding obligation in respect of the Merger or the exercise or settlement of any Company Stock Right or the vesting of restricted stock under the Code or any other Tax Law, which Allocation Certificate when approved by Parent shall be deemed the definitive allocation of Merger Consideration among the Participating Holders in accordance with the Merger and the disbursements thereof, including with respect to the Escrow Amount. In the event of a Closing Indebtedness Payment or that Parent elects to pay cash in lieu of shares of Parent Common Stock in accordance with Section 1.6, in completing the Allocation Certificate the parties may, by mutual written agreement, make adjustments in the Allocation Certificate to the extent necessary to achieve the intent of the conversion formulas set forth in this Section 1.6Transactions.

Allocation Certificate. On (a) Prior to the date of the Closing, the Company has prepared and delivered to Parent a draft of the Allocation Certificate that the Company anticipates in good faith is to be delivered by the Company to Parent immediately prior to the Closing, and immediately prior to the Closing Date, the Company shall deliver to Parent a certificate signed by the President and Chief Executive Officer of the Company (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying), in each case which Allocation Certificate shall set forth, as of the ClosingClosing Date and immediately prior to the First Effective Time, the following: (Ai) with respect to each Company Stockholder: (1) the identity name and mailing address and/or e-mail address of each record holder of Company Common Shares (other than Company Restricted Stock) and the number of Company Common Shares held by each such Stockholder; (B2) the identity of each record holder of Company Preferred Shares and the number of Company Preferred Shares held by each such Stockholder; (C) the identity of each record holder of a Participating Stock Right, the number and type of shares of Company Capital Shares covered by such Participating Common Stock Rights held by each such holderCompany Stockholder; (3) the respective certificate number(s) representing such shares of Company Common Stock; (4) the Pro Rata Share of each Company Stockholder; (5) the Parent Common Stock Payment Shares and the Parent Preferred Stock Payment Shares issuable to each Company Stockholder upon, and by virtue of, the exercise prices consummation of the Closing (for clarity, not including any of the Holdback Shares that may be issued to the Company Stockholders); (6) the Holdback Shares issuable to each Company Stockholder, both prior to and vesting schedules thereof, after the mandatory conversion of Parent Convertible Preferred Stock into shares of Parent Common Stock pursuant to the provisions of the Certificate of Designation upon the approval of the Preferred Stock Conversion Proposal by the Required Parent Stockholder Vote at the Parent Stockholders’ Meeting; and (7) whether such Company Stockholder has delivered a Holder Questionnaire and if such Company Stockholder is an Accredited Investor; (ii) with respect to the Company Warrants: (1) the name and mailing address and/or e-mail address of each holder of each Company Warrant; (2) the number and type of Company Capital Shares subject to each such Participating Stock Right that will be exercisable as of the Closing, and whether such Participating Stock Right is intended to be qualified as an “incentive stock option” under Section 422 of the Code; (D) the identity of each record holder of Company Restricted Stock, the number shares of Company Common Shares held by such Stockholder Stock underlying each Company Warrant as of immediately prior to the First Effective Time; (3) the issuance date and the vesting schedules thereofexpiration date of each Company Warrant; (E4) the address of record exercise price(s) per share of each holder Company Warrant as of Company Capital Shares, each holder of Participating Stock Rights and each holder of Company Restricted Stock; (F) immediately prior to the Merger Consideration and Escrow Amount allocable to each such holderFirst Effective Time; and (G5) the amounts required to be deducted and withheld (other than in respect of backup withholding) from the consideration otherwise payable to each such holder with respect to the payments or any other Tax withholding obligation in respect of the Merger or the exercise or settlement of any Company Stock Right or the vesting of restricted stock under the Code or any other Tax Law, which Allocation Certificate when approved by Parent shall be deemed the definitive allocation of Merger Consideration among the Participating Holders in accordance with the Merger and the disbursements thereof, including with respect to the Escrow Amount. In the event of a Closing Indebtedness Payment or that Parent elects to pay cash in lieu number of shares of Parent Common Stock issuable upon exercise of each Parent Common Stock Assumed Company Warrant, the number of shares of Parent Convertible Preferred Stock issuable upon exercise of each Parent Preferred Stock Assumed Company Warrant, and the exercise price per share of each Parent Common Stock Assumed Company Warrant and each Parent Preferred Stock Assumed Company Warrant. (b) For the purposes of determining the value of the shares of Parent Common Stock and Parent Convertible Preferred Stock included in accordance the Merger Consideration (including the Holdback Shares), each share of Parent Common Stock shall be deemed to have a cash or dollar value equal to the Parent Closing Price (subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split, reclassification, recapitalization or other similar event with Section 1.6respect to the Parent Common Stock at any time after the date of this Agreement), in completing and each share of Parent Convertible Preferred Stock shall be deemed to have a cash or dollar value equal to the product of the number of shares of Parent Common Stock into which such share of Parent Convertible Preferred Stock is convertible (disregarding and without taking into account any provision of the Certificate of Designation that limits or restricts the right of the holder of such share of Parent Convertible Preferred Stock to convert such share of Parent Convertible Preferred Stock into shares of Parent Common Stock) multiplied by the Parent Closing Price (subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split, reclassification, recapitalization and other similar event with respect to the Parent Common Stock at any time after the date of this Agreement). (c) The Parties agree that Parent and Merger Subs shall be entitled to rely on the Allocation Certificate the parties may, by mutual written agreement, make adjustments in the Allocation Certificate to the extent necessary to achieve the intent of the conversion formulas set forth in making payments under this Section 1.61 and any other payments pursuant to this Agreement, and Parent and Merger Subs shall not be responsible for the calculations or the determinations regarding such calculations in such Allocation Certificate.

Allocation Certificate. On Upon the Closing Dateexecution of this Agreement, the Company shall deliver to Parent and the Stockholder Representative a certificate (the “Allocation Certificate”) of the Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifyingsetting forth, in each case as of the Closing, most recent practicable date: (Ai) the identity of each record holder of Company Common Shares (other than Company Restricted Stock) Capital Stock and the number of shares of Company Common Shares Stock and/or Company Preferred Stock held by each such Stockholder; (Bii) the identity of each record holder of Company Preferred Shares Options and the number of Company Preferred Shares held by each such Stockholder; (C) the identity of each record holder of a Participating Stock Right, Warrants and the number and type of Company Capital Shares covered by such Participating Stock Rights held by such holder, the exercise prices and vesting schedules thereof, the number and type shares of Company Capital Shares Stock subject to each Company Option and Company Warrant; (iii) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) payable to each Company Securityholder pursuant to this Section 2.6; (iv) the amount of any required Tax withholding, if any, from the Merger Consideration (as adjusted pursuant to Section 2.11) to be paid to the Company Securityholders; (v) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be withheld from each Company Securityholder in establishing the Escrow Account; (vi) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be withheld from each Company Securityholder in establishing the Stockholder Representative Account; (vii) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be withheld from each Company Securityholder in establishing the Retention Account; (viii) the portion of the Merger Consideration (as adjusted pursuant to Section 2.11) to be paid to each Company Securityholder at Closing after deduction for the amounts set forth in (iv), (v), (vi) and (vii) above; (ix) the percentage of the Net Working Capital Adjustment to be paid to each Company Securityholder pursuant to Section 2.11(g); and (x) the percentage of the Earnout Payment to be paid to each Company Securityholder following the Earnout Determination Date pursuant to Section 2.10. Between the date hereof and Closing, the Company shall provide Parent and the Stockholder Representative with one or more updates to the Allocation Certificate as necessary to reflect (x) changes in the ownership of the Company Capital Stock during such Participating Stock Right that will be exercisable time and (y) any adjustments to the Merger Consideration in accordance with the terms and provisions of this Agreement, and shall deliver a final Allocation Certificate at the Closing setting forth the matters described above as of the Closing, and whether such Participating Stock Right is intended to be qualified as an Closing (the “incentive stock option” under Section 422 of the Code; (D) the identity of each record holder of Company Restricted Stock, the number of Company Common Shares held by such Stockholder and the vesting schedules thereof; (E) the address of record of each holder of Company Capital Shares, each holder of Participating Stock Rights and each holder of Company Restricted Stock; (F) the Merger Consideration and Escrow Amount allocable to each such holder; and (G) the amounts required to be deducted and withheld (other than in respect of backup withholding) from the consideration otherwise payable to each such holder with respect to the payments or any other Tax withholding obligation in respect of the Merger or the exercise or settlement of any Company Stock Right or the vesting of restricted stock under the Code or any other Tax Law, which Final Allocation Certificate”). Such Final Allocation Certificate when approved by Parent shall be deemed the definitive allocation of the Merger Consideration among payable to the Participating Holders in accordance with the Merger and the disbursements thereof, including Company Securityholders (except with respect to the Escrow Amount. In the event of a Closing Indebtedness Payment or that Parent elects to pay cash in lieu of shares of Parent Common Stock in accordance with Section 1.6, in completing the Allocation Certificate the parties may, by mutual written agreement, make changes resulting from adjustments in the Allocation Certificate to the extent necessary to achieve the intent of the conversion formulas set forth in this Merger Consideration under Section 1.62.8(g), Section 2.10, Section 2.11, Section 2.12 and Article VII).