Common use of Calculation of Company Net Cash Clause in Contracts

Calculation of Company Net Cash. (a) Not less than fifteen (15) calendar days prior to the Determination Date, the Company shall deliver to the Acquiror the Company Estimated Net Cash Schedule setting forth, in reasonable detail, the Company’s calculation of Company Net Cash (using an estimate of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) (the “Company Net Cash Calculation”). Within two (2) Business Days following the Determination Date, the Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date prepared by the Company and executed by the Company’s chief executive officer. The Company shall make the work papers and back-up materials used in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if requested by the Acquiror, its accountants and counsel at reasonable times and upon reasonable notice. (b) Within three (3) calendar days after the Company delivers either (or each) of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate (a “Company Response Date”, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Response Date”), the Acquiror shall have the right to dispute any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Dispute Notice”). (c) If on or prior to any Company Response Date, (i) the Acquiror notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, or (ii) the Acquiror fails to deliver an Acquiror Dispute Notice as provided in Section 1.7(b), then the Company Net Cash Calculation as set forth in the Company Net Cash Certificate shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash at the Determination Date for purposes of this Agreement, and the Company shall not be required to determine the Company Net Cash again provided that the Closing Date occurs no later than 15 calendar days after the Anticipated Closing Date.

Calculation of Company Net Cash. (a) Not less than fifteen (15) calendar For purposes of this Agreement, the “Anticipated Closing Date” shall be the anticipated date for Closing, as agreed upon by Parent and the Company at least 10 days prior to the Determination later of (i) the Company Stockholders Meeting and (ii) the Parent Stockholders Meeting, in each case subject to adjournment or postponement pursuant to Section 5.5. At least five days prior to the Anticipated Closing Date, the Company shall deliver to Parent a schedule (the Acquiror the Company Estimated “Net Cash Schedule Schedule”) setting forth, in reasonable detail, the Company’s good faith, estimated calculation of the Company Net Cash (using an estimate of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) (the “Company Net Cash Calculation”). Within two (2) Business Days following as of the Determination Anticipated Closing Date, the Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date prepared by the Company and executed certified by the Company’s chief executive Chief Financial Officer (or if there is no Chief Financial Officer, the principal accounting officer). The Company shall make available to Parent, or its accountants and/or counsel, the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash CertificateSchedule, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if as reasonably requested by the Acquiror, its accountants and counsel at reasonable times and upon reasonable noticeParent. (b) Within three (3) calendar days after the Company delivers either (or each) delivery of the Company Estimated Net Cash Schedule or (the Company Net Cash Certificate (a “Company Response Date”, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Response Date”), the Acquiror shall Parent will have the right to dispute any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature of any proposed revisions to the Net Cash Calculation. (c) If on or prior to any Company the Response Date, Parent (i) the Acquiror notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, Calculation or (ii) the Acquiror fails to deliver an Acquiror a Dispute Notice as provided in Section 1.7(b2.5(a), then the Company Net Cash Calculation as set forth in the Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash Certificate at the Anticipated Closing Date for purposes of this Agreement. (d) If Parent delivers a Dispute Notice on or prior to the Response Date, then Representatives of both parties shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash, at the Anticipated Closing Date for purposes of this Agreement. (e) If Representatives of Parent and the Company are unable to negotiate an agreed-upon determination of Company Net Cash at the Determination Anticipated Closing Date pursuant to Section 2.5(d) within three days after delivery of the Dispute Notice (or such other period as Parent and the Company may mutually agree upon), then Parent and the Company shall jointly select an independent auditor of recognized national standing (the “Accounting Firm”) to resolve any remaining disagreements as to the Net Cash Calculation. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Net Cash Schedule, and Parent and the Company shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within 10 days after accepting its selection. The Company and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Company Net Cash, made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash at the Anticipated Closing Date for purposes of this Agreement, and the parties shall delay the Closing until the resolution of the matters described in this Section 2.5(d). The fees and expenses of the Accounting Firm shall be allocated between Parent and Company in the same proportion that the disputed amount of Company Net Cash that was unsuccessfully disputed by such party (as finally determined by the Accounting Firm) bears to the total disputed amount of Company Net Cash, (and for the avoidance of doubt the fees and expenses to be paid by the Company shall reduce Company Net Cash). If this Section 2.5(d) applies as to the determination of Company Net Cash at the Anticipated Closing Date, upon resolution of the matter in accordance with this Section 2.5(d), the parties shall not be required to determine the Company Net Cash again provided that again, even if the Closing Date occurs no later than 15 calendar the Anticipated Closing Date, except that either party may request a re-determination of Company Net Cash if the Closing Date is more than five business days after the Anticipated Closing Date.

Calculation of Company Net Cash. (a) Not less than fifteen (15) calendar For purposes of this Agreement, the “Anticipated Offer Closing Date” shall be the anticipated Acceptance Time, as agreed upon by Parent and the Company at least 10 days prior to the Determination Expiration Time or, if Parent and the Company cannot so agree, the then scheduled date of the Expiration Time. At least five days prior to the Anticipated Offer Closing Date, the Company shall deliver to Parent a schedule (the Acquiror “Net Cash Schedule”), in the form set forth as Schedule I of the Company Estimated Net Cash Schedule Disclosure Schedule, setting forth, in reasonable detail, forth the Company’s calculation good faith estimate of Company Net Cash (using an estimate as of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) Anticipated Offer Closing Date (the “Company Net Cash Calculation”). Within two (2) Business Days following the Determination Date, the Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date prepared by the Company and executed certified by the Company’s chief executive Chief Financial Officer (or if there is no Chief Financial Officer, the Company’s principal accounting officer). The Company shall shall, during the period from delivery of the Net Cash Schedule until 5:00 p.m. Pacific Time on the Response Date, make available to Parent, or its accountants and/or counsel (in each case upon reasonable notice, at reasonable times and in a manner that does not interfere with the operation of the Company’s business), the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash CertificateSchedule, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if as reasonably requested by the Acquiror, its accountants and counsel at reasonable times and upon reasonable noticeParent. (b) Within three (3) By 5:00 p.m. Pacific Time on the third calendar days day after the Company delivers either (or each) delivery of the Company Estimated Net Cash Schedule or (the Company Net Cash Certificate (a “Company Response Date”, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Response Date”), the Acquiror shall Parent will have the right to dispute in good faith any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Net Cash Calculation. A Dispute Notice may only be given if the aggregate amount in dispute is greater than $250,000. (c) If on or prior to any Company the Response Date, Parent (i) the Acquiror timely notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, Calculation or (ii) the Acquiror fails to timely deliver an Acquiror a Dispute Notice as provided in Section 1.7(b1.14(b), then the Company Net Cash Calculation as set forth in the Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash Certificate at the Closing Date for purposes of this Agreement. (d) If Parent timely delivers a Dispute Notice on or prior to the Response Date, then Representatives of both parties shall promptly (and in any event within two days following timely delivery of the Dispute Notice) meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash at the Determination Closing Date for purposes of this Agreement. (e) If Representatives of Parent and the Company are unable to negotiate an agreed-upon determination of Company Net Cash at the Closing Date pursuant to Section 1.14(d) by 5:00 p.m. Eastern time on the third calendar day after delivery of the Dispute Notice (or such other period as Parent and the Company may mutually agree upon in writing), then Xxxxx Xxxxxxxx LLP, or such other independent auditor of recognized national standing as the Parent and the Company shall jointly select (the “Accounting Firm”) to resolve any remaining disagreements as to the Net Cash Calculation. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Net Cash Schedule, and Parent and the Company shall use reasonable best efforts to cause the Accounting Firm to make its determination within 10 calendar days after accepting its selection. The Company and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. In determining the Company Net Cash hereunder, the Accounting Firm shall act as an expert and not as an arbitrator, and the Accounting Firm’s authority is limited to resolving disputed issues of fact (and not law). The procedures set forth in this Section 1.14(e) concerning the determination of Company Net Cash hereunder by the Accounting Firm shall be governed by the law of expert determination and appraisal rather than the law of arbitration. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Company Net Cash made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash at the Closing Date for purposes of this Agreement, and the parties shall delay the Closing until the resolution of the matters described in this Section 1.14(e) and, if necessary, the End Date shall be deemed extended to allow for such resolution. The fees and expenses of the Accounting Firm shall be allocated between Parent and Company in the same proportion that the disputed amount of Company Net Cash that was unsuccessfully disputed by such party (as finally determined by the Accounting Firm) bears to the total disputed amount of Company Net Cash (and for the avoidance of doubt the fees and expenses to be paid by the Company shall not be required reduce Company Net Cash). If this Section 1.14(e) applies as to determine the determination of Company Net Cash at the Anticipated Offer Closing Date, upon resolution of the matter in accordance with this Section 1.14(e), the Company Net Cash again provided that as so determined shall be deemed to be the Closing Date occurs no later than 15 calendar days after the Anticipated Closing DateCompany Net Cash for all purposes of this Agreement, and shall not be subject to any re-determination.

Calculation of Company Net Cash. (a) Not less than fifteen (15) five calendar days prior to the Determination Anticipated Closing Date, the Company shall will deliver to Apricus a schedule (the Acquiror the “Company Estimated Net Cash Schedule Schedule”) setting forth, in reasonable detail, the Company Average Daily Cash Burn and the Company’s good faith, estimated calculation of Company Net Cash (using an estimate of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) (the “Company Net Cash Calculation”). Within two (2) Business Days following ” and the Determination Datedate of delivery of such schedule, the “Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date Delivery Date”) prepared by the Company and executed certified by the Company’s chief executive principal financial officer or principal accounting officer. The Company shall make available to Apricus, as reasonably requested by Apricus, the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if requested by Apricus, the Acquiror, its Company’s accountants and counsel at reasonable times and upon reasonable noticenotice for the purpose of verifying the Company Net Cash Calculation. (b) Within three (3) calendar days after the Company delivers either Delivery Date (or each) the last day of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate (a “Company Response Date”such period, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Apricus Response Date”), the Acquiror Apricus shall have the right to dispute any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate Calculation by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Apricus Dispute Notice”). Any Apricus Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Company Net Cash Calculation. (c) If If, on or prior to any Company the Apricus Response Date, (i) the Acquiror Apricus notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, Calculation or (ii) the Acquiror Apricus fails to deliver an Acquiror Apricus Dispute Notice as provided in Section 1.7(b1.10(b), then the Company Net Cash Calculation as set forth in the Company Net Cash Certificate Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash at the Determination Date for purposes of this Agreement. (d) If Apricus delivers an Apricus Dispute Notice on or prior to the Apricus Response Date, then Representatives of Apricus and the Company shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash for purposes of this Agreement. (e) If Representatives of Apricus and the Company are unable to negotiate an agreed-upon determination of Company Net Cash pursuant to Section 1.10(d) within three calendar days after delivery of the Apricus Dispute Notice (or such other period as Apricus and the Company may mutually agree upon), then any remaining disagreements as to the calculation of Company Net Cash shall be referred to the Accounting Firm. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Company Net Cash Schedule, and Apricus and the Company shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within ten calendar days of accepting its selection. The Company and Apricus shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Apricus. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. 9 Exhibit 2.1 The determination of the amount of Company Net Cash made by the Accounting Firm shall be made in writing delivered to each of Apricus and the Company, shall be final and binding on Apricus and the Company and shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash for purposes of this Agreement. The Parties shall delay the Closing until the resolution of the matters described in this Section 1.10(e). The fees and expenses of the Accounting Firm shall be allocated between Apricus and the Company in the same proportion that the disputed amount of the Company Net Cash that was unsuccessfully disputed by such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of the Company Net Cash amount. If this Section 1.10(e) applies as to the determination of the Company Net Cash described in Section 1.10(a), upon resolution of the matter in accordance with this Section 1.10(e), the Parties shall not be required to determine the Company Net Cash again provided that even though the Closing Date occurs no may occur later than 15 the Anticipated Closing Date, except that either Apricus or the Company may request a redetermination of Company Net Cash if the Closing Date is more than 30 calendar days after the Anticipated Closing Date.

Calculation of Company Net Cash. (a) Not less than fifteen (15) calendar For purposes of this Agreement, the “Anticipated Closing Date” shall be the anticipated date for Closing, as agreed upon by Parent and the Company at least 10 days prior to the Determination Company Stockholders’ Meeting, or, if Parent and Company cannot so agree, the scheduled date of the Company Stockholders’ Meeting. At least five days prior to the Anticipated Closing Date, the Company shall deliver to Parent a schedule (the Acquiror “Net Cash Schedule”), in the form set forth as Schedule I of the Company Estimated Net Cash Schedule Disclosure Schedule, setting forth, in reasonable detail, forth the Company’s calculation good faith estimate of Company Net Cash (using an estimate as of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) Anticipated Closing Date (the “Company Net Cash Calculation”). Within two (2) Business Days following the Determination Date, the Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date prepared by the Company and executed certified by the Company’s chief executive Chief Financial Officer (or if there is no Chief Financial Officer, the Company’s principal accounting officer). The Company shall shall, during the period from delivery of the Net Cash Schedule until 5:00 p.m. Pacific Time on the Response Date, make available to Parent, or its accountants and/or counsel (in each case upon reasonable notice, at reasonable times and in a manner that does not interfere with the operation of the Company’s business), the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash CertificateSchedule, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if as reasonably requested by the Acquiror, its accountants and counsel at reasonable times and upon reasonable noticeParent. (b) Within three (3) By 5:00 p.m. Pacific Time on the third calendar days day after the Company delivers either (or each) delivery of the Company Estimated Net Cash Schedule or (the Company Net Cash Certificate (a “Company Response Date”, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Response Date”), the Acquiror shall Parent will have the right to dispute in good faith any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Net Cash Calculation. A Dispute Notice may only be given if the aggregate amount in dispute is greater than $250,000. (c) If on or prior to any Company the Response Date, Parent (i) the Acquiror timely notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, Calculation or (ii) the Acquiror fails to timely deliver an Acquiror a Dispute Notice as provided in Section 1.7(b1.11(b), then the Company Net Cash Calculation as set forth in the Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash Certificate at the Closing Date for purposes of this Agreement. (d) If Parent timely delivers a Dispute Notice on or prior to the Response Date, then Representatives of both parties shall promptly (and in any event within two days following timely delivery of the Dispute Notice) meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash at the Determination Closing Date for purposes of this Agreement. (e) If Representatives of Parent and the Company are unable to negotiate an agreed-upon determination of Company Net Cash at the Closing Date pursuant to Section 1.11(d) by 5:00 p.m. Eastern time on the third calendar day after delivery of the Dispute Notice (or such other period as Parent and the Company may mutually agree upon in writing), then Xxxxx Xxxxxxxx LLP, or such other independent auditor of recognized national standing as the Parent and the Company shall jointly select (the “Accounting Firm”) to resolve any remaining disagreements as to the Net Cash Calculation. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Net Cash Schedule, and Parent and the Company shall use reasonable best efforts to cause the Accounting Firm to make its determination within 10 calendar days after accepting its selection. The Company and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. In determining the Company Net Cash hereunder, the Accounting Firm shall act as an expert and not as an arbitrator, and the Accounting Firm’s authority is limited to resolving disputed issues of fact (and not law). The procedures set forth in this Section 1.11(e) concerning the determination of Company Net Cash hereunder by the Accounting Firm shall be governed by the law of expert determination and appraisal rather than the law of arbitration. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Company Net Cash made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash at the Closing Date for purposes of this Agreement, and the parties shall delay the Closing until the resolution of the matters described in this Section 1.11(e) and, if necessary, the End Date shall be deemed extended to allow for such resolution. The fees and expenses of the Accounting Firm shall be allocated between Parent and Company in the same proportion that the disputed amount of Company Net Cash that was unsuccessfully disputed by such party (as finally determined by the Accounting Firm) bears to the total disputed amount of Company Net Cash (and for the avoidance of doubt the fees and expenses to be paid by the Company shall not be required reduce Company Net Cash). If this Section 1.11(e) applies as to determine the determination of Company Net Cash at the Anticipated Closing Date, upon resolution of the matter in accordance with this Section 1.11(e), the Company Net Cash again provided that as so determined shall be deemed to be the Closing Date occurs no later than 15 calendar days after the Anticipated Closing DateCompany Net Cash for all purposes of this Agreement, and shall not be subject to any re-determination.

Calculation of Company Net Cash. (a) Not less than fifteen (15) five calendar days prior to the Determination Anticipated Closing Date, the Company shall will deliver to Apricus a schedule (the Acquiror the “Company Estimated Net Cash Schedule Schedule”) setting forth, in reasonable detail, the Company Average Daily Cash Burn and the Company’s good faith, estimated calculation of Company Net Cash (using an estimate of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) (the “Company Net Cash Calculation”). Within two (2) Business Days following ” and the Determination Datedate of delivery of such schedule, the “Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date Delivery Date”) prepared by the Company and executed certified by the Company’s chief executive principal financial officer or principal accounting officer. The Company shall make available to Apricus, as reasonably requested by Apricus, the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if requested by Apricus, the Acquiror, its Company’s accountants and counsel at reasonable times and upon reasonable noticenotice for the purpose of verifying the Company Net Cash Calculation. (b) Within three (3) calendar days after the Company delivers either Delivery Date (or each) the last day of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate (a “Company Response Date”such period, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Apricus Response Date”), the Acquiror Apricus shall have the right to dispute any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate Calculation by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Apricus Dispute Notice”). Any Apricus Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Company Net Cash Calculation. (c) If If, on or prior to any Company the Apricus Response Date, (i) the Acquiror Apricus notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, Calculation or (ii) the Acquiror Apricus fails to deliver an Acquiror Apricus Dispute Notice as provided in Section 1.7(b1.10(b), then the Company Net Cash Calculation as set forth in the Company Net Cash Certificate Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash at the Determination Date for purposes of this Agreement. (d) If Apricus delivers an Apricus Dispute Notice on or prior to the Apricus Response Date, then Representatives of Apricus and the Company shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash for purposes of this Agreement. (e) If Representatives of Apricus and the Company are unable to negotiate an agreed-upon determination of Company Net Cash pursuant to Section 1.10(d) within three calendar days after delivery of the Apricus Dispute Notice (or such other period as Apricus and the Company may mutually agree upon), then any remaining disagreements as to the calculation of Company Net Cash shall be referred to the Accounting Firm. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Company Net Cash Schedule, and Apricus and the Company shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within ten calendar days of accepting its selection. The Company and Apricus shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Apricus. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Company Net Cash made by the Accounting Firm shall be made in writing delivered to each of Apricus and the Company, shall be final and binding on Apricus and the Company and shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash for purposes of this Agreement. The Parties shall delay the Closing until the resolution of the matters described in this Section 1.10(e). The fees and expenses of the Accounting Firm shall be allocated between Apricus and the Company in the same proportion that the disputed amount of the Company Net Cash that was unsuccessfully disputed by such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of the Company Net Cash amount. If this Section 1.10(e) applies as to the determination of the Company Net Cash described in Section 1.10(a), upon resolution of the matter in accordance with this Section 1.10(e), the Parties shall not be required to determine the Company Net Cash again provided that even though the Closing Date occurs no may occur later than 15 the Anticipated Closing Date, except that either Apricus or the Company may request a redetermination of Company Net Cash if the Closing Date is more than 30 calendar days after the Anticipated Closing Date.

Calculation of Company Net Cash. (a) Not more than seven and not less than fifteen (15) five calendar days prior to the Determination Anticipated Closing Date, the Company shall will deliver to Parent a schedule (the Acquiror the “Company Estimated Net Cash Schedule Schedule”) setting forth, in reasonable detail, the Company’s good faith, estimated calculation of Company Net Cash (using an estimate of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) (the “Company Net Cash Calculation”). Within two (2) Business Days following ” and the Determination Datedate of delivery of such schedule, the “Company shall deliver to the Acquiror the Company Net Cash Certificate Delivery Date”) prepared and certified as of such Determination Date prepared by the Company true and executed correct by the Company’s chief executive officerChief Financial Officer (or if there is no Chief Financial Officer, the principal accounting officer for the Company). The Company shall make available to Parent, as reasonably requested by Parent, the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if requested by Parent, the Acquiror, its Company’s accountants and counsel at reasonable times and upon reasonable noticenotice for the purpose of verifying the Company Net Cash Calculation. (b) Within three (3) calendar days after the Company delivers either Delivery Date (or each) the last day of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate (a “Company Response Date”such period, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Parent Response Date”), the Acquiror Parent shall have the right to dispute any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate Calculation by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Parent Dispute Notice”). Any Parent Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Company Net Cash Calculation. (c) If If, on or prior to any Company the Parent Response Date, (i) the Acquiror Parent notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicableCalculation, or (ii) the Acquiror Parent fails to deliver an Acquiror a Parent Dispute Notice as provided in Section 1.7(b1.07(b), then the Company Net Cash Calculation as set forth in the Company Net Cash Certificate Schedule shall represent the Final Company Net Cash. (d) If Parent delivers a Parent Dispute Notice on or prior to the Parent Response Date, then Parent and the Company shall promptly meet and attempt in good faith to resolve the disputed items and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount (if so agreed) shall represent the Final Company Net Cash. (e) If Parent and the Company are unable to negotiate an agreed-upon determination of Company Net Cash pursuant to Section 1.07(d) within three (3) calendar days after delivery of the Parent Dispute Notice (or such other period as Parent and the Company may mutually agree upon), then any remaining disagreements as to the calculation of Company Net Cash shall be deemed referred to have been finally determined for purposes of this Agreement the Accounting Firm (selected as provided in Section 1.06(e)). The Company shall promptly deliver to the Accounting Firm the work papers and to represent back-up materials used in preparing the Company Net Cash at the Determination Date for purposes of this AgreementSchedule, and Parent and the Company shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within ten (10) calendar days of accepting its selection. The Company and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Company Net Cash made by the Accounting Firm shall be made in writing delivered to each of Parent and the Company, shall be final and binding on Parent and the Company and shall represent the Final Company Net Cash. The Parties shall delay the Closing as necessary until the resolution of the matters described in this Section 1.07. The fees and expenses of the Accounting Firm shall be allocated between Parent and the Company in the same proportion that the disputed amount of the Company Net Cash that was unsuccessfully disputed by such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of the Company Net Cash amount. If this Section 1.07(e) applies as to the determination of the Company Net Cash described in Section 1.07(a), upon resolution of the matter in accordance with this Section 1.07(e), the Parties shall not be required to determine the Final Company Net Cash again provided that even though the Closing Date occurs no may occur later than 15 the Anticipated Closing Date, except that either Parent or the Company may request a redetermination of Final Company Net Cash if the Closing Date is more than 30 calendar days after the Anticipated Closing Date.

Calculation of Company Net Cash. (a) Not less than fifteen (15) calendar For purposes of this Agreement, the “Anticipated Offer Closing Date” shall be the anticipated Acceptance Time, as agreed upon by Parent and the Company at least 10 days prior to the Determination Expiration Time or, if Parent and Company cannot so agree, the then scheduled date of the Expiration Time. At least five days prior to the Anticipated Offer Closing Date, the Company shall deliver to Parent a schedule (the Acquiror “Net Cash Schedule”), in the form set forth as Schedule I of the Company Estimated Net Cash Schedule Disclosure Schedule, setting forth, in reasonable detail, forth the Company’s calculation good faith estimate of Company Net Cash (using an estimate as of the Company’s cash and cash equivalents and each item included in Company Indebtedness, in each case as of such date and determined in accordance with GAAP and, to the extent consistent with GAAP, consistent with the manner in which such items were determined for purposes of the Company Financials) Anticipated Offer Closing Date (the “Company Net Cash Calculation”). Within two (2) Business Days following the Determination Date, the Company shall deliver to the Acquiror the Company Net Cash Certificate as of such Determination Date prepared by the Company and executed certified by the Company’s chief executive Chief Financial Officer (or if there is no Chief Financial Officer, the Company’s principal accounting officer). The Company shall shall, during the period from delivery of the Net Cash Schedule until 5:00 p.m. Pacific Time on the Response Date, make available to Parent, or its accountants and/or counsel (in each case upon reasonable notice, at reasonable times and in a manner that does not interfere with the operation of the Company’s business), the work papers and back-up materials used or useful in preparing the Company Estimated Net Cash Schedule and the Company Net Cash CertificateSchedule, and the personnel of the Company that participated in preparing the Company Estimated Net Cash Schedule and the Company Net Cash Certificate, available to the Acquiror and, if as reasonably requested by the Acquiror, its accountants and counsel at reasonable times and upon reasonable noticeParent. (b) Within three (3) By 5:00 p.m. Pacific Time on the third calendar days day after the Company delivers either (or each) delivery of the Company Estimated Net Cash Schedule or (the Company Net Cash Certificate (a “Company Response Date”, the Company Response Dates and the Acquiror Response Dates being referred to collectively as a “Response Date”), the Acquiror shall Parent will have the right to dispute in good faith any part of the Company Estimated Net Cash Schedule or the Company Net Cash Certificate by delivering a written notice to that effect to the Company (an “Acquiror Dispute Notice”, the Company Dispute Notice and the Acquiror Dispute Notice being referred to collectively as a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Net Cash Calculation. A Dispute Notice may only be given if the aggregate amount in dispute is greater than $250,000. (c) If on or prior to any Company the Response Date, Parent (i) the Acquiror timely notifies the Company in writing that it has no objections to the Company Estimated Net Cash Schedule or the Company Net Cash Certificate, as applicable, Calculation or (ii) the Acquiror fails to timely deliver an Acquiror a Dispute Notice as provided in Section 1.7(b1.14(b), then the Company Net Cash Calculation as set forth in the Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash Certificate at the Closing Date for purposes of this Agreement. (d) If Parent timely delivers a Dispute Notice on or prior to the Response Date, then Representatives of both parties shall promptly (and in any event within two days following timely delivery of the Dispute Notice) meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Company Net Cash, which agreed upon Company Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Net Cash at the Determination Closing Date for purposes of this Agreement. (e) If Representatives of Parent and the Company are unable to negotiate an agreed-upon determination of Company Net Cash at the Closing Date pursuant to Section 1.14(d) by 5:00 p.m. Eastern time on the third calendar day after delivery of the Dispute Notice (or such other period as Parent and the Company may mutually agree upon in writing), then Xxxxx Xxxxxxxx LLP, or such other independent auditor of recognized national standing as the Parent and the Company shall jointly select (the “Accounting Firm”) to resolve any remaining disagreements as to the Net Cash Calculation. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Net Cash Schedule, and Parent and the Company shall use reasonable best efforts to cause the Accounting Firm to make its determination within 10 calendar days after accepting its selection. The Company and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. In determining the Company Net Cash hereunder, the Accounting Firm shall act as an expert and not as an arbitrator, and the Accounting Firm’s authority is limited to resolving disputed issues of fact (and not law). The procedures set forth in this Section 1.14(e) concerning the determination of Company Net Cash hereunder by the Accounting Firm shall be governed by the law of expert determination and appraisal rather than the law of arbitration. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Company Net Cash made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent Company Net Cash at the Closing Date for purposes of this Agreement, and the parties shall delay the Closing until the resolution of the matters described in this Section 1.14(e) and, if necessary, the End Date shall be deemed extended to allow for such resolution. The fees and expenses of the Accounting Firm shall be allocated between Parent and Company shall not be required to determine in the same proportion that the disputed amount of Company Net Cash again provided that was unsuccessfully disputed by such party (as finally determined by the Closing Date occurs no later than 15 calendar days after Accounting Firm) bears to the Anticipated Closing Date.total disputed amount of Company Net Cash (and for the avoidance of doubt the fees and expenses to be paid by the Company shall reduce Company Net