Determination of Exchange Ratio. (i) As promptly as practicable, and in any event within ten (10) days after the Determination Date, each Calculating Party shall prepare and deliver to the Receiving Party a Proposed Book Value Schedule, together with such supporting documentation that the Receiving Party may reasonably request.
(ii) Within two (2) Business Days after the delivery of each Proposed Book Value Schedule, the Receiving Party shall notify the Calculating Party whether it accepts or disputes the accuracy of the Proposed Book Value Schedule. In the event that the Receiving Party disputes the accuracy of the Proposed Book Value Schedule, the Receiving Party shall notify the Calculating Party in writing and in reasonable detail of those items and amounts as to which the Receiving Party disagrees and, provided the Receiving Party has received such supporting documentation reasonably necessary to do so, shall set forth the Receiving Party’s calculation of such disputed amounts (a “Dispute Notice”), and the Receiving Party shall be deemed to have agreed with all other items and amounts contained in the Proposed Book Value Schedule other than as set forth in any such Dispute Notice. In the event that the Receiving Party notifies the Calculating Party that it accepts the Proposed Book Value Schedule or does not deliver a Dispute Notice to the Calculating Party during such two (2) Business Day period, the Receiving Party shall be deemed to have accepted the Proposed Book Value Schedule, and the calculations of the Parent Adjusted Book Value Per Share or Company Adjusted Book Value Per Share set forth therein shall be final, conclusive and binding upon the parties.
(iii) Prior to the delivery of the Proposed Book Value Schedules, Parent and the Company shall act in good faith to mutually agree upon a nationally recognized registered independent public accounting firm or a nationally recognized independent valuation expert (in either case, the “Independent Accounting or Valuation Firm”) to resolve any disputes pursuant to this Section 3.1(c). If a Dispute Notice shall be timely delivered by the Receiving Party pursuant to Section 3.1(c)(ii) above, then the Calculating Party and the Receiving Party shall forthwith jointly request that the Independent Accounting or Valuation Firm make a binding determination only as to the items set forth in the Dispute Notice in accordance with the terms of this Agreement. The Independent Accounting or Valuation Firm will, under the terms of its engagement,...
Determination of Exchange Ratio. (a) At the Closing, the Company shall deliver to the Buyer a certificate, in form and substance satisfactory to The Buyer and signed by the Company's President and Chief Financial Officer (the "Company Closing Certificate"), certifying (i) that the warrant ("Warrant") issued to Phoenix Leasing Incorporated (the "Warrant Holder") in connection with an equipment finance line of credit has been fully exercised (the "Warrant Exercise") for Common Stock (as defined below); (ii) that pursuant to clause (B) of ARTICLE IV, Section 3(b) of the Certificate of Incorporation (as defined in Section 3.1(b)), all outstanding shares of (x) Series A Preferred Stock, par value $0.001 per share, of the Company ("Series A Preferred Stock"), (y) Series B Preferred Stock, par value $0.001 per share, of the Company ("Series B Preferred Stock"), and (z) Series C Preferred Stock, par value $0.001 per share, of the Company ("Series C Preferred Stock" and, together with Series A Preferred Stock and Series B Preferred Stock, "Preferred Stock") have been mandatorily converted, effective immediately prior to the Effective Time (the "Preferred Stock Conversion"), into an equivalent number of shares of Common Stock, par value $.0001 per share, of the Company ("Common Stock", and, together with Preferred Stock, "Company Stock"); (iii) as to the number of shares of Common Stock underlying all options to purchase Common Stock ("Options") granted and outstanding under the Company's 1996 Stock Option/Stock Issuance Plan (the "Company Stock Plan") and related Option Agreements (each an "Option Agreement"), whether or not vested or exercisable, outstanding as of immediately prior to the Effective Time; (iv) the number of shares of Common Stock outstanding immediately prior to the Effective Time, calculated on a fully diluted basis, giving effect to the exercise and the conversion referred to in (i) and (ii) above and assuming that all Options referred to in (iii) above, whether or not vested, have been exercised in full (such number of shares of Common Stock being referred to as the "Fully Diluted Common Stock Number"); and (v) by reference to a schedule to the Company Closing Certificate, as to a list of all the holders of shares of Common Stock (after giving effect to the exercise and conversion referred to in (i) and (ii) above) as such names appear on the stock transfer books of the Company (individually, a "Company Stockholder" and collectively, the "Company Stockholders"), the number of s...
Determination of Exchange Ratio. Parent shall calculate the Exchange Ratio and the Parent Stock Value and such calculations shall be conclusive absent manifest error. Parent will issue a press release before 9:00 A.M., New York City time, on the last full trading day before the date of the expiration of the Offer, announcing the Exchange Ratio and the Parent Stock Value.
Determination of Exchange Ratio. If the Average Price of Parent Common Stock is, as of the date that is two business days prior to the earliest of the Parent Shareholders Meeting or Company Shareholders Meeting contemplated by Section 7.4 hereof (the “Price Determination Date”), equal to or greater than $32.54 but less than or equal to $52.54, the Exchange Ratio shall be 0.188; provided, however, that if the Average Price of Parent Common Stock is, as of the Price Determination Date, less than $32.54 or greater than $52.54 (in either case, an “Ultimate Price Event”), then Parent and the Company shall seek, in good faith, to negotiate an Exchange Ratio that is acceptable to both parties, and if such parties fail to reach agreement within two business days of the Price Determination Date, either Parent or Company shall have the right to terminate this Agreement pursuant to Section 9.2(e).
Determination of Exchange Ratio. (a) For purposes of this Agreement, the following terms shall have the following meanings:
Determination of Exchange Ratio. (a) No later than five days after the Parent receives the Company's Disclosure Schedule, the Parent shall deliver to the Company a notice (the "Parent's Notice") that either (i) states the Exchange Ratio, which, subject to Section 2.3, shall not be less than 1.30 nor more than 1.40, or (ii) states that the Company Disclosure Schedule, or the due diligence investigation theretofore conducted by the Parent, causes the Board of Directors of the Parent to conclude that there exists material information concerning the Company that (A) may be reasonably expected to materially and adversely affect the financial condition, operations, business or prospects of the Company or the enforceability of this Agreement, and (B) if known at the date of this Agreement, the Parent would not have entered into this Agreement, at least not at an Exchange Ratio of 1.3 or higher. If the Parent's Notice contains the statement described in clause (ii) of the preceding sentence, then the Parent may, at its option: (i) within 10 days after the date on which the Parent receives the Company Disclosure Schedule, terminate this Agreement pursuant to Section 7.1(c); or (ii) proceed with the transactions contemplated by this Agreement, with an Exchange Ratio of 1.3. If the Parent's Notice states an Exchange Ratio of 1.3 or higher, then the Exchange Ratio stated in the notice shall, subject to Section 2.3, be conclusive and binding on each party, and shall be the Exchange Ratio for purposes of this Agreement, unless within five business days after its receipt of both the Parent Disclosure Schedule and the Parent's Notice, the Company delivers to the Parent notice stating that (x) the Parent Disclosure Schedule, or the due diligence investigation conducted by the Company, causes the Board of Directors of the Company to conclude that there exists material information concerning the Parent that may be reasonably expected to materially and adversely affect the financial condition, operations, business of the Parent or the enforceability of this Agreement, and (y) if known at the date of this Agreement, the Company would not have entered into this Agreement, at least not at the Exchange Ratio proposed by the Parent. If the Company delivers such written notice within such five day period, then the Company and the Parent shall negotiate in good faith with a view toward agreement upon the amount of the Exchange Ratio. If the Company and the Parent are unable to resolve their differences within five ...
Determination of Exchange Ratio. (a) No later than five (5) business days prior to the Closing Date (the “Determination Date”), the Company will deliver to Parent a schedule (the “Company Net Cash Schedule”) setting forth, in reasonable detail, the Company’s good faith, estimated calculation of (i) Net Cash of the Company and its consolidated subsidiaries as of the close of business on the last business day prior to the anticipated Closing Date (the “Cash Determination Time”) and (ii) any potential Company Licensing Deal Revenue, as determined in good faith by the Company, in each case, prepared and certified by the Company’s Chief Financial Officer. The Company shall make available to Parent, as reasonably requested by Pxxxxx, the work papers and back-up materials used or useful in preparing the Company Net Cash Schedule and the calculation of potential Company Licensing Deal Revenue and, if reasonably requested by Parent, the Company’s accountants and counsel at reasonable times and upon reasonable notice.
(b) No later than the Determination Date, Parent will deliver to the Company a schedule (the “Parent Net Cash Schedule”, and together with the Company Net Cash Schedule, each, a “Net Cash Schedule”) setting forth, in reasonable detail, Parent’s good faith, estimated calculation of (i) Net Cash of Parent and its consolidated subsidiaries as of the Cash Determination Time and (ii) any potential Parent Licensing Deal Revenue, prepared and certified by Parent’s Chief Financial Officer. Parent shall make available to the Company, as reasonably requested by the Company, the work papers and back-up materials used or useful in preparing the Parent Net Cash Schedule and the calculation of potential Parent Licensing Deal Revenue and, if reasonably requested by the Company, Pxxxxx’s accountants and counsel at reasonable times and upon reasonable notice.
(c) No later than three (3) days after the date on which Parent or the Company, as applicable, delivers its applicable Net Cash Schedule to the other party (the last day of such period, the “Response Date”), the other party (in such capacity, the “Reviewing Party”) shall have the right to dispute any part of the applicable Net Cash Schedule by delivering a written notice (a “Dispute Notice”) to that effect to the other party (in such capacity, the “Preparing Party”). Any Dispute Notice shall identify in reasonable detail and to the extent known the nature and amounts of any proposed revisions to the calculations set forth in the applicable Net Ca...
Determination of Exchange Ratio. (a) The aggregate number of shares (or fraction thereof) of Guaranty Common Stock to be exchanged for each share of DCB Common Stock shall be adjusted appropriately to reflect any change in the number of shares of Guaranty Common Stock by reason of any stock dividends or splits, reclassification, recapitalization or conversion with respect to Guaranty Common Stock, received or to be received by holders of Guaranty Common Stock, when the record date or payment occurs prior to the Effective Time.
Determination of Exchange Ratio. 3 Section 2.2 Conversion of Capital Stock..................................6 Section 2.3 Exchange of Certificates.....................................8 Section 2.4 Closing of Company Transfer Books............................9 Section 2.5
Determination of Exchange Ratio. (a) The number of shares (or fraction of a share) of common stock, $.001 par value per share, of the Buyer ("Buyer Common Stock") to be issued in the Merger for each share of Series A Preferred Stock, par value $0.01 per share, of the Company ("Series A Preferred Stock") in accordance with this Article II (the "Series A Exchange Ratio") shall be determined by dividing (x) an amount equal to $9.99 plus any declared but unpaid dividends on such share of Series A Preferred Stock (such amount, the "Series A Amount") by (y) $84.5705 (the amount referenced in this clause (y) being referred to herein as the "Average Buyer Common Stock Price"). The aggregate number of shares of Series A Preferred Stock to be converted in the Merger pursuant to this Article II multiplied by the Series A Amount is hereinafter referred to as the "Series A Proceeds."
(b) The number of shares (or fraction of a share) of Buyer Common Stock to be issued in the Merger for each share of Series B Preferred Stock, par value $0.01 per share, of the Company ("Series B Preferred Stock") in accordance with this Article II (the "Series B Exchange Ratio") shall be determined by dividing an amount equal to $14.99 plus any declared but unpaid dividends on such share of Series B Preferred Stock (such amount, the "Series B Amount") by the Average Buyer Common Stock Price. The aggregate number of shares of Series B Preferred Stock to be converted in the Merger pursuant to this Article II multiplied by the Series B Amount is hereinafter referred to as the "Series B Proceeds."
(c) The number of shares (or fraction of a share) of Buyer Common Stock to be issued in the Merger for each share of Series C Preferred Stock, par value $0.01 per share, of the Company ("Series C Preferred Stock") in accordance with this Article II (the "Series C Exchange Ratio") shall be determined by dividing an amount equal to $2.19 plus any declared but unpaid dividends on such share of Series C Preferred Stock (such amount, the "Series C Amount") by the Average Buyer Common Stock Price. The aggregate number of shares of Series C Preferred Stock to be converted in the Merger pursuant to this Article II multiplied by the Series C Amount is hereinafter referred to as the "Series C Proceeds."
(d) The number of Shares (or fraction of a share) of Buyer Common Stock to the issued in the Merger for each shares of Series D Preferred Stock, par value $0.01 per share, of the Company ("Series D Preferred Stock") in accordance with this Ar...
