Common use of Merger Consideration Certificate Clause in Contracts

Merger Consideration Certificate. (a) Prior to the execution of this Agreement, the Company has delivered to Buyer and Merger Sub, based on an estimated Closing Date mutually agreed by Buyer and the Company, a certificate signed by the Company’s chief executive officer and chief financial officer (the “Preliminary Merger Consideration Certificate”) setting forth (i) the amount estimated to be required to discharge in full the Company Indebtedness that is anticipated to be outstanding immediately prior to the Closing (the “Closing Company Indebtedness”); (ii) the amount of Closing Cash anticipated at the Closing; (iii) the amount of Transaction Costs anticipated to be unpaid at the Closing and the amount estimated to be required to discharge in full such Transaction Costs at the Closing; (iv) the Company’s estimated calculations, in reasonable detail, of (A) the Per Share Series A Preferred Merger Consideration for the outstanding shares of Series A Preferred Stock, (B) the Per Share Series B Preferred Merger Consideration for the outstanding shares of Series B Preferred Stock, (C) the Per Share Series C Preferred Merger Consideration for the outstanding shares of Series C Preferred Stock, (D) the Per Share Common Merger Consideration, (E) the Option and Warrant Merger Consideration with respect to each Option and Warrant, and (F) the amount of the Closing Merger Consideration that will be payable at the Effective Time to each Stockholder, Optionholder and Warrantholder. (b) No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Buyer and Merger Sub a certificate signed by the Company’s chief executive officer (the “Merger Consideration Certificate”) updating as necessary the information in the Preliminary Merger Consideration Certificate to reflect such information at the Effective Time. The Company and Buyer shall discuss and each approve the contents of such Merger Consideration Certificate (as the Merger Consideration Certificate may be so adjusted, the “Final Merger Consideration Certificate”) and acknowledge such approval in a writing signed by each of the Company and Buyer. The calculations set forth in the Final Merger Consideration Certificate of the (A) Per Share Series A Preferred Merger Consideration, (B) Per Share Series B Preferred Merger Consideration, (C) Per Share Series C Preferred Merger Consideration, (D) Per Share Common Merger Consideration and (E) the Option and Warrant Merger Consideration, and the amounts payable in accordance thereof, will be binding and will be used for all purposes of this Agreement. (c) In connection with delivering the Preliminary Merger Consideration Certificate and Merger Consideration Certificate to Buyer, the Company will provide to Buyer all detailed supporting data and calculations demonstrating each component thereof and shall provide Buyer and its representatives with reasonable access to the Company’s and the Subsidiaries’ books and records, Contracts and other documents to permit Buyer to confirm the Preliminary Merger Consideration Certificate and the Merger Consideration Certificate. Notwithstanding the foregoing, the Company shall not have any obligation to provide Buyer with any such access or information which is subject to attorney-client privilege or prohibited under applicable Laws. (d) No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Buyer and Merger Sub wire transfer instructions from each Person to whom any Transaction Costs are, or upon consummation of the Closing will be, owed.

Merger Consideration Certificate. (a) Prior to the execution of this Agreement, the Company has delivered to Buyer and Merger Sub, based on an estimated Closing Date mutually agreed by Buyer and the Company, a certificate signed by the Company’s chief executive officer and chief financial officer (the “Preliminary Merger Consideration Certificate”) setting forth (i) the amount estimated to be required to discharge in full the Company Indebtedness that is anticipated to be outstanding immediately prior to the Closing (the “Closing Company Indebtedness”); (ii) the amount of Closing Cash anticipated at the At Closing; (iii) the amount of Transaction Costs anticipated to be unpaid at the Closing and the amount estimated to be required to discharge in full such Transaction Costs at the Closing; (iv) the Company’s estimated calculations, in reasonable detail, of (A) the Per Share Series A Preferred Merger Consideration for the outstanding shares of Series A Preferred Stock, (B) the Per Share Series B Preferred Merger Consideration for the outstanding shares of Series B Preferred Stock, (C) the Per Share Series C Preferred Merger Consideration for the outstanding shares of Series C Preferred Stock, (D) the Per Share Common Merger Consideration, (E) the Option and Warrant Merger Consideration with respect to each Option and Warrant, and (F) the amount of the Closing Merger Consideration that will be payable at the Effective Time to each Stockholder, Optionholder and Warrantholder. (b) No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Buyer Parent and Merger Sub the Holders Representative a certificate signed (the "Merger Consideration Certificate") that shall include (1) a complete and accurate list of all of the liabilities of the Company and its Subsidiaries as of the close of business on the business day immediately preceding the Closing Date (the "Closing Liabilities", which shall not include liabilities under written executory Company Program Contracts to the extent that such liabilities accrue and arise from and after the Closing but shall include (i) amounts owing to Parent under the proviso to subparagraph 3(b) of the Option Agreement, (ii) any and all payment amounts due and payable by the Company under equipment leases, real estate leases and any other agreements to which the Company is a party regardless of whether any such payment amounts are accrued or due and payable prior to or after the Closing (other than payment amounts that accrue or arise from and after the Closing under Company Program Contracts) and (iii) the Transaction Expenses referred to below in clause (5) of this paragraph, and shall be calculated net of any cash deposits held by the creditor to whom the liability is owed), (2) for each of the Company's and its Subsidiaries' bank accounts, the uncollected checks or other payment orders or instructions made by the Company as of the close of business on the business day immediately preceding the Closing Date and the respective amount of each such uncollected checks or other payment orders or instructions, (3) a complete and accurate list, including the amount, of all cash and cash equivalents, as well as all cash deposits held by the Company’s chief executive officer , as of the close of business on the business day immediately preceding the Closing Date, (4) the “Merger Consideration Certificate”Available Closing Cash, (5) updating the Transaction Expenses, if any, that have not been paid or adequately provided for as necessary of the information in close of business on the Preliminary Merger Consideration Certificate business day immediately preceding the Closing Date, and (6) the number of shares of Company Preferred Stock outstanding immediately prior to reflect such information at the Effective Time. The Company and Buyer shall discuss and each approve the contents of such Merger Consideration Certificate shall further set forth a calculation of (as i) the Merger Consideration Certificate may be so adjustedClosing Consideration, (ii) the “Final Merger Consideration Certificate”Preferred Stock Closing Amount in accordance with Section 2.6(a), and (iii) and acknowledge such approval in a writing signed by each the respective portions of the Preferred Stock Closing Amount payable to each holder of Company Preferred Stock based on their respective holdings thereof immediately prior to the Effective Time and Buyerapplication of the provisions of Section 3.1 of the LLC Agreement. The information and calculations set forth in the Final Merger Consideration Certificate shall be deemed to constitute a representation and warranty of the (A) Per Share Series A Preferred Merger Consideration, (B) Per Share Series B Preferred Merger Consideration, (C) Per Share Series C Preferred Merger Consideration, (D) Per Share Common Company and any inaccuracy or calculation of any information set forth in the Merger Consideration and (E) the Option and Warrant Merger Consideration, and the amounts payable Certificate that results in accordance thereof, will be binding and will be used Damages to Parent shall entitle Parent to make a claim for all purposes indemnification for breach of representation or warranty under Section 9.2 of this Agreement. (c) In connection with delivering the Preliminary Merger Consideration Certificate and Merger Consideration Certificate to Buyer, the Company will provide to Buyer all detailed supporting data and calculations demonstrating each component thereof and shall provide Buyer and its representatives with reasonable access to the Company’s and the Subsidiaries’ books and records, Contracts and other documents to permit Buyer to confirm the Preliminary Merger Consideration Certificate and the Merger Consideration Certificate. Notwithstanding the foregoing, the Company shall not have any obligation to provide Buyer with any such access or information which is subject to attorney-client privilege or prohibited under applicable Laws. (d) No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Buyer and Merger Sub wire transfer instructions from each Person to whom any Transaction Costs are, or upon consummation of the Closing will be, owed.