Common use of Estimated Merger Consideration Clause in Contracts

Estimated Merger Consideration. On or prior to the fourth (4th) Business Day (and not more than ten (10) Business Days) before the Closing Date, the Company shall (a) estimate in good faith the amount of the Closing Cash, the Closing Indebtedness, the Closing Working Capital and the Selling Expenses, respectively, and deliver to Parent a certificate (the “Closing Certificate”) setting forth such estimates and the calculation of the Estimated Merger Consideration based thereon, along with reasonable supporting detail therefor (such estimates and calculations shall be prepared consistent with the definitions in this Agreement and, if applicable, the Accounting Policies), and (b) deliver to Parent the Allocation Schedule. As used herein, “Estimated Closing Cash,” “Estimated Closing Indebtedness,” “Estimated Closing Working Capital” and “Estimated Selling Expenses” mean the estimates of the Closing Cash, the Closing Indebtedness, the Closing Working Capital, the Transaction Bonuses and the Selling Expenses, respectively, set forth in the Closing Certificate, and “Estimated Merger Consideration” means an amount equal to the Merger Consideration calculated as set forth in Section 2.7, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing Indebtedness, that the Closing Working Capital is equal to the Estimated Closing Working Capital and that the Selling Expenses are equal to the Estimated Selling Expenses; provided, that if the Estimated Closing Working Capital is within One Hundred Twenty-Five Thousand Dollars ($125,000) of the Working Capital Target, in either direction, then the Estimated Closing Working Capital shall be deemed to be equal to the Working Capital Target for purposes of the calculation of the Estimated Merger Consideration. The Company shall consider in good faith any reasonable comments Parent may have to the Closing Certificate and Allocation Schedule and, to the extent any changes are made, the Company shall deliver an updated Closing Certificate and Allocation Schedule prior to the Closing (for the avoidance of doubt, Parent’s failure to identify or raise any comment shall not indicate any acceptance or waiver by Parent or otherwise affect Parent’s rights under Section 2.9). The Company may reject any of Parent’s comments to the Closing Certificate and Allocation Schedule, and the parties shall proceed to Closing based on the Company’s Closing Certificate and Allocation Schedule, subject to any changes the Company agrees to make. The Company shall provide reasonable cooperation with the accountants and advisors of Parent in the review of the Closing Certificate and Allocation Schedule and, without limiting the generality of the foregoing, shall cause the books and records of the Company used in preparation of the Closing Certificate and Allocation Schedule to be made available during normal business hours to such Representatives, and shall cause the necessary personnel of the Company responsible for the preparation of the Closing Certificate and Allocation Schedule to assist such Representatives in their review of the Closing Certificate and Allocation Schedule.

Estimated Merger Consideration. On or (a) The aggregate amount to be paid by Parent at the Closing shall represent an estimate of the Merger Consideration (such amount, the “Estimated Merger Consideration”) calculated as follows: the Base Amount, minus (i) the Estimated Indebtedness Amount which is outstanding immediately prior to the fourth Closing, minus (4thii) the amount of Transaction Expenses, and plus or minus, as applicable, (iii) the Estimated Positive Net Working Capital Adjustment Amount or the Estimated Negative Net Working Capital Adjustment Amount, and plus or minus, as applicable. (b) Not less than five (5) Business Day (and not more than ten (10) Business Days) before Days prior to the Closing Date, the Company shall prepare and deliver to Parent an estimated closing balance sheet for the Company and its Subsidiaries (aother than SpinCo) estimate setting forth the Company’s estimated consolidated assets and liabilities as of immediately prior to the Closing (the “Estimated Closing Balance Sheet”). The Estimated Closing Balance Sheet shall be prepared by the Company in good faith in the same manner as the Annual Balance Sheet and in accordance with GAAP, as consistently applied by the Company, and shall be certified by the Chief Financial Officer of the Company. In connection with the preparation of the Estimated Closing Balance Sheet, the Company shall also prepare a calculation of the estimated Net Working Capital as of immediately prior to the Closing (the “Estimated Closing Net Working Capital”), and the estimated amount of Indebtedness as of immediately prior to the Closing, (the “Estimated Indebtedness Amount”), each such estimate to be prepared in good faith, in accordance with GAAP consistently applied by the Company and, with respect to the Estimated Closing Net Working Capital, in the same manner as the determination of the Net Working Capital Target (each, an “Estimated Statement” and together, the “Estimated Statements”). All such estimates shall be certified by the Chief Financial Officer of the Company. To assist Parent in its review of the Estimated Closing Balance Sheet and Estimated Statements, the Company shall make available to Parent and its Representatives such information and detail used in connection therewith that is reasonably requested by Parent. Parent shall notify the Company of any dispute it has with the Estimated Closing Balance Sheet or any Estimated Statement, and the parties shall exercise good faith efforts to agree on the Estimated Closing Balance Sheet and Estimated Statements in advance of the Closing; provided, however, that the acceptance by Parent of the Estimated Closing Balance Sheet or any Estimated Statement shall not limit or otherwise affect Parent’s remedies under this Agreement, including Parent’s right to include such changes or other changes in the Closing Balance Sheet, or constitute an acknowledgment by Parent of the accuracy of the Estimated Closing Balance Sheet or any of the Estimated Statements. If the Estimated Closing Net Working Capital is less than the Net Working Capital Target, then the Estimated Merger Consideration shall be reduced by the amount of the Closing Cash, deficiency (such deficiency is referred to as the Closing Indebtedness, the Closing “Estimated Negative Net Working Capital and Adjustment Amount”). If the Selling ExpensesEstimated Closing Net Working Capital is greater than the Net Working Capital Target, respectively, and deliver to Parent a certificate (the “Closing Certificate”) setting forth such estimates and the calculation of then the Estimated Merger Consideration based thereon, along with reasonable supporting detail therefor shall be increased by the amount of the excess (such estimates and calculations shall be prepared consistent with increase is referred to as the definitions in this Agreement and, if applicable, the Accounting Policies), and (b) deliver to Parent the Allocation Schedule. As used herein, “Estimated Closing Cash,” “Positive Net Working Capital Adjustment Amount”)). The Estimated Closing Indebtedness,” “Estimated Closing Working Capital” and “Estimated Selling Expenses” mean the estimates of Merger Consideration is subject to adjustment after the Closing Cash, the Closing Indebtedness, the Closing Working Capital, the Transaction Bonuses and the Selling Expenses, respectively, set forth in the Closing Certificate, and “Estimated Merger Consideration” means an amount equal pursuant to the Merger Consideration calculated as set forth in provisions of Section 2.7, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing Indebtedness, that the Closing Working Capital is equal to the Estimated Closing Working Capital and that the Selling Expenses are equal to the Estimated Selling Expenses; provided, that if the Estimated Closing Working Capital is within One Hundred Twenty-Five Thousand Dollars 3.10. ($125,000c) of the Working Capital Target, in either direction, then the Estimated Closing Working Capital shall be deemed to be equal to the Working Capital Target for purposes of the calculation of the Estimated Merger Consideration. The Company shall consider in good faith any reasonable comments Parent may have Not less than five (5) Business Days prior to the Closing Certificate and Allocation Schedule and, to the extent any changes are madeDate, the Company shall deliver an updated Closing Certificate and Allocation Schedule prior to Parent a schedule of all unpaid Transaction Expenses incurred in connection with the Closing (for the avoidance of doubtMerger, Parent’s failure to identify or raise any comment shall not indicate any acceptance or waiver by Parent or otherwise affect Parent’s rights under Section 2.9). The Company may reject any of Parent’s comments to the Closing Certificate and Allocation Schedule, identifying each Person that provided services that generated Transaction Expenses and the parties shall proceed amount necessary to Closing based on satisfy in full the CompanySurviving Corporation’s Closing Certificate and Allocation Schedule, subject to any changes obligation for such Transaction Expenses (the Company agrees to make. The Company shall provide reasonable cooperation with the accountants and advisors of Parent in the review of the Closing Certificate and Allocation Schedule and, without limiting the generality of the foregoing, shall cause the books and records of the Company used in preparation of the Closing Certificate and Allocation Schedule to be made available during normal business hours to such Representatives, and shall cause the necessary personnel of the Company responsible for the preparation of the Closing Certificate and Allocation Schedule to assist such Representatives in their review of the Closing Certificate and Allocation Schedule“Transaction Expense Certificate”).

Estimated Merger Consideration. On or No later than five Business Days prior to the fourth Closing, the Company shall deliver to the Buyer: (4thi) a good faith estimate of the Merger Consideration (the “Estimated Merger Consideration”) pursuant to which the Company shall (A) use the Enterprise Value and (B) estimate (1) the amount of Cash and Cash Equivalents (which amount of Cash and Cash Equivalents shall not exceed $10,000,000), (2) the amount of Closing Company Indebtedness, (3) the amount of Specified Capital Expenditures and (4) the amount of Transaction Expenses and (ii) the Allocation Schedule as a schedule thereto ((i) and (ii) together, the “Estimated Closing Statement”). Following delivery of the Estimated Closing Statement, the Company will provide the Buyer, Archaea, and their respective accountants and other Representatives with a reasonable opportunity to review the Estimated Closing Statement. At least two Business Day (and not more than ten (10) Business Days) before Days prior to the Closing Date, the Buyer or Archaea may notify the Company of any comments or questions with respect to the Estimated Closing Statement and the Company shall (ax) estimate consider in good faith such comments or questions to the amount of Estimated Closing Statement and (y) prepare and deliver an updated Estimated Closing Statement to the Company prior the Closing CashDate reflecting any agreed upon changes resulting from such comments or questions. Notwithstanding the foregoing, the Closing Indebtedness, the Closing Working Capital and the Selling Expenses, respectively, and deliver to Parent a certificate (the “Closing Certificate”) setting forth such Company’s estimates and the calculation of the Estimated Merger Consideration based thereon, along with reasonable supporting detail therefor (such estimates and calculations shall be prepared consistent with the definitions in this Agreement and, if applicable, the Accounting Policies), and (b) deliver to Parent the Allocation Schedule. As used herein, “Estimated Closing Cash,” “Estimated Closing Indebtedness,” “Estimated Closing Working Capital” and “Estimated Selling Expenses” mean the estimates of the Closing Cash, the Closing Indebtedness, the Closing Working Capital, the Transaction Bonuses and the Selling Expenses, respectively, set forth in the Estimated Closing CertificateStatement delivered to the Buyer in accordance with this Agreement shall control and be binding for purposes of the Closing except to the extent adjustments thereto have been agreed to in writing by the Parties (including any adjustments thereto resulting from the comments or questions raised in the immediately preceding sentence). Each of the Company and the Equityholder Representative (on behalf of the Company Unitholders) hereby acknowledge and agree that the Buyer may rely upon the Allocation Schedule, and “Estimated in no event will the Buyer or any of its Affiliates (including the Surviving Company) have any liability to any Company Unitholder or other Person with respect to the allocation of the Merger Consideration” means an amount equal Consideration payable under this Agreement or pursuant to the Merger Consideration calculated or on account of payments made in accordance with the terms hereof as set forth in Section 2.7, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing Indebtedness, that the Closing Working Capital is equal to the Estimated Closing Working Capital and that the Selling Expenses are equal to the Estimated Selling ExpensesAllocation Schedule; provided, however, that if in no event shall the Estimated Closing Working Capital is within One Hundred Twenty-Five Thousand Dollars ($125,000) of amounts set forth on the Working Capital TargetAllocation Schedule result in, in either directionor require the Buyer to issue or pay hereunder, then an amount greater than the Estimated Closing Working Capital shall be deemed to be equal to the Working Capital Target for purposes of the calculation of the Estimated Merger Consideration. The Company shall consider in good faith any reasonable comments Parent may have to the Closing Certificate and Allocation Schedule and, to the extent any changes are made, the Company shall deliver an updated Closing Certificate and Allocation Schedule prior to the Closing (for the avoidance of doubt, Parent’s failure to identify or raise any comment shall not indicate any acceptance or waiver by Parent or otherwise affect Parent’s rights under Section 2.9). The Company may reject any of Parent’s comments to the Closing Certificate and Allocation Schedule, and the parties shall proceed to Closing based on the Company’s Closing Certificate and Allocation Schedule, subject to any changes the Company agrees to make. The Company shall provide reasonable cooperation with the accountants and advisors of Parent in the review of the Closing Certificate and Allocation Schedule and, without limiting the generality of the foregoing, shall cause the books and records of the Company used in preparation of the Closing Certificate and Allocation Schedule to be made available during normal business hours to such Representatives, and shall cause the necessary personnel of the Company responsible for the preparation of the Closing Certificate and Allocation Schedule to assist such Representatives in their review of the Closing Certificate and Allocation Schedule.

Estimated Merger Consideration. On or At least two (2) Business Days prior to the fourth (4th) Business Day (and not more than ten (10) Business Days) before the Closing DateClosing, the Company shall (a) estimate in good faith the amount of the Closing Cash, the Closing Indebtedness, the Closing Working Capital and the Unpaid Selling Expenses, respectively, and shall deliver to Parent Purchaser a certificate (the “Closing Certificate”) setting forth such estimates and the estimates, together with its calculation of the Estimated Merger Consideration based thereon, along with reasonable supporting detail therefor (such estimates and calculations shall be prepared consistent with the definitions in this Agreement and, if applicable, the Accounting Policies), and (b) deliver to Parent the Allocation ScheduleConsideration. As used herein, “Estimated Closing Cash,” “Estimated Closing Indebtedness,” “Estimated Closing Working Capital” and “Estimated Unpaid Selling Expenses” mean the estimates of the Closing Cash, the Closing Indebtedness, the Closing Working Capital, the Transaction Bonuses Capital and the Unpaid Selling Expenses, respectively, set forth in the Closing Certificate, Certificate and “Estimated Merger Consideration” means an amount equal to the Merger Consideration calculated as set forth in Section 2.7herein, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing Indebtedness, that the Closing Working Capital is equal to the Estimated Closing Working Capital and that the Unpaid Selling Expenses are equal to the Estimated Unpaid Selling Expenses; provided. For the avoidance of doubt, that adjustments shall be made to the Estimated Merger Consideration or the Merger Consideration with respect to the Estimated Closing Working Capital or the Closing Working Capital on a dollar for dollar basis if the Estimated Closing Working Capital is within One Hundred Twenty-Five Thousand Dollars (less than $125,000) of the Working Capital Target, in either direction, then the Estimated Closing Working Capital shall be deemed to be equal to the Working Capital Target for purposes of the calculation of the Estimated Merger Consideration0. The Company shall consider in good faith any reasonable comments Parent may have to the Closing Certificate and Allocation Schedule shall (a) be prepared in accordance with GAAP and, to except where inconsistent with GAAP, shall use the extent any changes are made, same accounting principles and practices the Company shall deliver an updated Closing Certificate and Allocation Schedule prior to the Closing (for the avoidance of doubt, Parent’s failure to identify or raise any comment shall not indicate any acceptance or waiver by Parent or otherwise affect Parent’s rights under Section 2.9). The Company may reject any of Parent’s comments to the Closing Certificate and Allocation Schedule, and the parties shall proceed to Closing based on the Company’s Closing Certificate and Allocation Schedule, subject to any changes the Company agrees to make. The Company shall provide reasonable cooperation with the accountants and advisors of Parent has used in the review of the Closing Certificate and Allocation Schedule and, without limiting the generality of the foregoing, shall cause Financial Statements (b) be derived from the books and records (including the general ledgers) of the Company used in preparation of the Closing Certificate and Allocation Schedule to be made available during normal business hours to such RepresentativesCompany, and shall cause (c) properly reflect such books and records (including the necessary personnel of the Company responsible for the preparation of the Closing Certificate and Allocation Schedule to assist such Representatives in their review of the Closing Certificate and Allocation Schedulegeneral ledgers).

Estimated Merger Consideration. On or before the second Business Day prior to the fourth (4th) Business Day (and not more than ten (10) Business Days) before the Closing Date, the Company shall deliver to Parent (a) estimate in good faith the amount an estimated consolidated balance sheet of the Closing Cash, the Closing Indebtedness, the Closing Working Capital Company and the Selling Expenses, respectively, and deliver to Parent a certificate its Subsidiaries (the “Preliminary Closing CertificateBalance Sheet”) certified by the Chief Financial Officer of the Company as setting forth such estimates and the calculation his good faith best estimate of the Estimated Merger Consideration based thereonassets, along with reasonable supporting detail therefor (such estimates liabilities and calculations shall be prepared consistent with stockholders’ equity of the definitions in this Agreement and, if applicable, Company and its Subsidiaries on a consolidated basis as of immediately prior to the Accounting Policies)Closing, and (b) deliver to Parent the Allocation Schedule. As used herein, “Estimated Closing Cash,” “Estimated Closing Indebtedness,” “Estimated Closing Working Capital” and “Estimated Selling Expenses” mean the estimates a certificate of the Closing Cash, Chief Financial Officer of the Closing Indebtedness, the Closing Working Capital, the Transaction Bonuses and the Selling Expenses, respectively, set Company setting forth in reasonable detail his computation based on the Preliminary Closing Certificate, and “Estimated Merger Consideration” means an Balance Sheet of the amount equal to the Merger Consideration calculated as set forth in Section 2.7, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing Indebtedness, that (i) the Closing Working Capital is equal to (the Estimated Closing “Working Capital Estimate”), and that the Selling Expenses are equal to the Estimated Selling Expenses; provided, that if the Estimated Closing resulting Working Capital is within One Hundred Twenty-Five Thousand Dollars ($125,000) of the Overage or Working Capital TargetUnderage, in either directionif any, then (ii) the Assumed Indebtedness (the “Estimated Closing Working Capital shall be deemed to be equal to the Working Capital Target for purposes of the calculation of Assumed Indebtedness Amount”) and (iii) the Estimated Merger Consideration. The Preliminary Closing Balance Sheet shall be prepared using the same accounting principles and practices as applied by the Company in preparing the Audited Balance Sheet; provided, however, that the Working Capital Estimate shall consider be prepared in good faith accordance with the Balance Sheet Rules. If Parent disagrees with any of Table of Contents the Company’s calculation of the Working Capital Estimate, the resulting Working Capital Overage or Working Capital Underage, if any, the Estimated Assumed Indebtedness or the Estimated Merger Consideration, Parent shall notify the Company of such disagreement in writing setting forth in reasonable comments Parent may have to detail the Closing Certificate and Allocation Schedule and, to the extent any changes are madeparticulars of such disagreement. Following such notice, the Company and Parent shall deliver an updated Closing Certificate and Allocation Schedule use their respective good faith efforts to resolve such disagreements prior to the Closing (for Closing; provided that if the avoidance of doubt, Parent’s failure to identify or raise any comment shall Company and Parent cannot indicate any acceptance or waiver by Parent or otherwise affect Parent’s rights under Section 2.9). The Company may reject resolve any of Parent’s comments to such disagreements, the Closing Certificate and Allocation Schedule, and the parties shall proceed to Closing based on the Company’s Closing Certificate and Allocation Schedule, subject to any changes the Company agrees to make. The Company shall provide reasonable cooperation with the accountants and advisors of Parent in the review of the Closing Certificate and Allocation Schedule and, without limiting the generality of the foregoing, shall cause the books and records determination of the Company on all such unresolved matters shall be used in preparation of the Closing Certificate and Allocation Schedule to be made available during normal business hours to such Representatives, and shall cause the necessary personnel of the Company responsible for the preparation purposes of the Closing Certificate this Section 3.2 and Allocation Schedule to assist such Representatives in their review of the Closing Certificate and Allocation ScheduleSection 3.3.

Estimated Merger Consideration. On or prior to the fourth (4th) Not later than three Business Day (and not more than ten (10) Business Days) Days before the Closing DateClosing, the Company shall deliver to Parent and the Equityholders' Representative a certificate of the Company (athe "Company Pre-Closing Certificate") executed on its behalf by the Chief Financial Officer of the Company that sets forth in reasonable detail the Company's estimates of the Company Net Working Capital Amount (the "Estimated Net Working Capital Amount"), Closing Cash ("Estimated Closing Cash"), Closing Debt ("Estimated Closing Debt") and Unpaid Company Transaction Expenses ("Estimated Unpaid Company Transaction Expenses"), along with the supporting detail therefor, such estimates to be prepared in accordance with GAAP, using the policies, conventions, methodologies and procedures used by the Company in preparing the Company Financial Statements, and the Company's estimate of the Transaction Tax Benefit ("Estimated Transaction Tax Benefit") along with supporting detail therefor, such estimate to be prepared in accordance with the Transaction Tax Benefit Schedule. Prior to Closing, the Company and Parent shall cooperate in good faith the amount of the Closing Cash, the Closing Indebtedness, the Closing Working Capital and the Selling Expenses, respectively, and deliver to Parent a certificate (the “Closing Certificate”) setting forth such estimates and agree upon the calculation of the Estimated Merger Consideration based thereonNet Working Capital Amount, along with reasonable supporting detail therefor (such estimates and calculations shall be prepared consistent with the definitions in this Agreement and, if applicable, the Accounting Policies), and (b) deliver to Parent the Allocation Schedule. As used herein, “Estimated Closing Cash,” “Estimated Closing Indebtedness,” “Estimated Closing Working Capital” and “Estimated Selling Expenses” mean the estimates of the Closing Cash, the Closing Indebtedness, the Closing Working Capital, the Transaction Bonuses and the Selling Expenses, respectively, set forth in the Closing Certificate, and “Estimated Merger Consideration” means an amount equal to the Merger Consideration calculated as set forth in Section 2.7, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing IndebtednessDebt, that Estimated Transaction Tax Benefit and Estimated Unpaid Company Transaction Expenses upon which the Per Share Merger Consideration to be paid at Closing Working Capital is equal to the Estimated Closing Working Capital and that the Selling Expenses are equal to the Estimated Selling Expensesshall be based; provided, that that, if the Estimated Company and Parent are unable to agree as to any item set forth on the Company Pre-Closing Working Capital is within One Hundred Twenty-Five Thousand Dollars ($125,000) of the Working Capital Target, in either directionCertificate, then the amount set forth as the Estimated Net Working Capital Amount, Estimated Closing Cash, Estimated Closing Debt, Estimated Transaction Tax Benefit or Estimated Unpaid Company Transaction Expenses, as applicable, on the Company Pre-Closing Certificate shall be an estimate of Estimated Net Working Capital shall be deemed Amount, Estimated Closing Cash, Estimated Closing Debt, Estimated Transaction Tax Benefit or Estimated Unpaid Company Transaction Expenses, as applicable, agreed to be equal to by the Working Capital Target for purposes of the calculation of the Estimated Merger Consideration. The Company shall consider in good faith any reasonable comments Parent may have to the Closing Certificate and Allocation Schedule and, to the extent any changes are made, the Company shall deliver an updated Closing Certificate and Allocation Schedule prior to the Closing (for the avoidance of doubt, Parent’s failure to identify or raise any comment shall not indicate any acceptance or waiver by Parent or otherwise affect Parent’s rights under Section 2.9). The Company may reject any of Parent’s comments to the Closing Certificate and Allocation Schedule, and the parties shall proceed to Closing based on the Company’s Closing Certificate and Allocation Schedule, subject to any changes the Company agrees to make. The Company shall provide reasonable cooperation with the accountants and advisors of Parent in the review of the Closing Certificate and Allocation Schedule and, without limiting the generality of the foregoing, shall cause the books and records of the Company used in preparation of the Closing Certificate and Allocation Schedule to be made available during normal business hours to such Representatives, and shall cause the necessary personnel of the Company responsible for the preparation of the Closing Certificate and Allocation Schedule to assist such Representatives in their review of the Closing Certificate and Allocation Scheduleparties.