Common use of Pre-Closing Statement Clause in Contracts

Pre-Closing Statement. (a) No later than five Business Days prior to the Closing Date, the Company shall prepare and furnish to Parent a written statement (the “Estimate Statement”), setting forth in reasonable detail the Company’s good faith estimates of Closing Cash (“Estimated Closing Cash”), Closing Indebtedness (“Estimated Closing Indebtedness”), the Closing Net Working Capital Adjustment (the “Estimated Closing Net Working Capital Adjustment”) and Unpaid Transaction Expenses (“Estimated Unpaid Transaction Expenses”), together with reasonable supporting documentation therefor, and, based on such amounts, a calculation of the Estimated Merger Consideration, the Merger Shares and the Cash Merger Consideration, and a duly completed Allocation Schedule (using the same calculations and following the same methodologies set forth on Schedule I) updated to reflect the amounts referred to in clause (i) of this Section. Parent may until two Business Days prior to the Closing Date provide the Company with comments to the Estimate Statement and Allocation Schedule, and the Company shall consider such comments in good faith. The Company shall provide all supporting documentation reasonably requested by Parent in connection with Parent’s review of the preliminary and final Estimate Statement and Allocation Schedule. (b) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Merger Sub, the Surviving Company or any of their respective Affiliates, (x) it is expressly acknowledged and agreed that the preparation of the Allocation Schedule and the allocation set forth therein are the sole responsibility of the Equityholders and the Company and that Parent, Merger Sub, the Surviving Company and the Exchange Agent and their respective Affiliates shall be entitled to rely on the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event shall Parent, Merger Sub or, after the Effective Time, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) in accordance with the Allocation Schedule.

Pre-Closing Statement. (a) No later than five Business Days prior to the Closing Date, the Company shall Seller will prepare and furnish to Parent a written statement (the “Estimate Pre-Closing Statement”), setting forth in reasonable detail the Company’s good faith estimates ) as of Closing Cash a date not earlier than ten (“Estimated Closing Cash”), Closing Indebtedness (“Estimated Closing Indebtedness”), the Closing Net Working Capital Adjustment (the “Estimated Closing Net Working Capital Adjustment”10) and Unpaid Transaction Expenses (“Estimated Unpaid Transaction Expenses”), together with reasonable supporting documentation therefor, and, based on such amounts, a calculation of the Estimated Merger Consideration, the Merger Shares and the Cash Merger Consideration, and a duly completed Allocation Schedule (using the same calculations and following the same methodologies set forth on Schedule I) updated to reflect the amounts referred to in clause (i) of this Section. Parent may until two Business Days prior to the Closing Date provide reflecting the Company with comments Assets to the Estimate Statement be sold and Allocation Schedule, assigned hereunder and the Company shall consider such comments Assumed Liabilities to be transferred and assumed hereunder. Seller will deliver the Pre-Closing Statement to Purchaser not less than three (3) Business Days before the Closing Date. Seller agrees to pay to Purchaser at the Closing, in good faith. The Company shall provide all supporting documentation reasonably requested immediately available funds, the excess, if any, of (i) the amount of Deposit Liabilities assumed by Parent in connection with Parent’s review Purchaser pursuant to Section 2.03(b)(i) above and the amount of any prorated items owed by Seller to Purchaser pursuant to Section 2.04(c) above, as reflected by the Pre-Closing Statement, over (ii) the aggregate amount of the preliminary Acquisition Consideration computed in accordance with Section 2.04(a) above and final Estimate Statement and Allocation Schedule. (bthe amount of any prorated items owed by Purchaser to Seller pursuant to Section 2.04(c) Notwithstanding anything above, as reflected by the Pre-Closing Statement. Purchaser agrees to pay to Seller at the contrary Closing, in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Merger Subimmediately available funds, the Surviving Company or any excess, if any, of their respective Affiliates, (x) it is expressly acknowledged and agreed that the preparation of the Allocation Schedule and the allocation set forth therein are the sole responsibility of the Equityholders and the Company and that Parent, Merger Sub, the Surviving Company and the Exchange Agent and their respective Affiliates shall be entitled to rely on the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event shall Parent, Merger Sub or, after the Effective Time, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each aggregate amount of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) Acquisition Consideration computed in accordance with Section 2.04(a) above and the Allocation Scheduleamount of any prorated items owed by Purchaser to Seller pursuant to Section 2.04(c) above, as reflected by the Pre-Closing Statement, over (z) the amount of Deposit Liabilities assumed by Purchaser pursuant to Section 2.03(b)(i) above and the amount of any prorated items owed by Seller to Purchaser pursuant to Section 2.04(c) above, as reflected by the Pre-Closing Statement. The calculation of the payment of funds at Closing required under this Agreement will be made on a preliminary settlement statement in the form attached as Exhibit 2.04(e) hereto. The payment by Purchaser to Seller or by Seller to Purchaser will be subject to subsequent adjustment based on the final settlement statement in the form attached hereto as Exhibit 8.03, which final settlement statement will be prepared in the same manner as the preliminary settlement statement.

Pre-Closing Statement. At least four (a4) No later than five Business Days prior to the anticipated Closing Date, the Company shall prepare and furnish deliver to Parent a written statement (the “Estimate Statement”), setting forth in reasonable detail consisting of the Company’s good faith estimates of the following amounts: (i) an estimated calculation of the Closing Cash Amount (the “Estimated Closing CashCash Amount”), (ii) an estimated calculation of the Seller Transaction Expenses as of the Closing Date (the “Estimated Seller Transaction Expenses”), (iii) an estimated calculation of the Closing Indebtedness (the “Estimated Closing Indebtedness”), the (iv) an estimated calculation of Closing Net Working Capital Adjustment (the “Estimated Closing Net Working Capital”) and the Estimated Working Capital Adjustment, (v) an estimated calculation of the Transaction Tax Benefit Amount (the “Estimated Transaction Tax Benefit Amount”) and Unpaid Transaction Expenses (“Estimated Unpaid Transaction Expenses”), together with reasonable supporting documentation therefor, and, based on such amounts, vi) a calculation of the Estimated Merger Consideration, the Merger Shares and the Cash Merger Consideration, and a duly completed Allocation Schedule Consideration (using the same calculations and following the same methodologies set forth on Schedule I) updated to reflect the amounts referred to in clause (i) of this Sectioneach case together with backup calculations). Parent may submit any objections in writing to the Company until 5:00 p.m., New York City time, two Business Days prior to the anticipated Closing Date provide the Company with comments to the Estimate Statement and Allocation Schedule, and the Company shall consider such comments will cooperate in good faith. The Company shall provide all supporting documentation reasonably requested by good-faith with Parent in connection with Parent’s review to revise the draft statement to reflect the mutual agreement of the preliminary and final Estimate Statement and Allocation Schedule. (b) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Merger Sub, the Surviving Company or any of their respective Affiliates, (x) it is expressly acknowledged and agreed that the preparation of the Allocation Schedule and the allocation set forth therein are the sole responsibility of the Equityholders and the Company and that Parent, Merger SubParent with respect to the estimated amounts set forth in the preceding sentence (as so revised and agreed, the Surviving “Pre-Closing Statement”); provided, that if the Company and Parent cannot reach an agreement with respect to the Exchange Agent and their respective Affiliates amounts set forth in the preceding sentence, the Pre-Closing Statement will reflect the Company’s good-faith estimates with respect to such amounts. The Estimated Merger Consideration shall be entitled subject to rely on the Allocation Schedule, without any obligation adjustment pursuant to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and this Section 2.11 (y) in no event shall Parent, Merger Sub or, after the Effective Timeas adjusted, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule “Merger Consideration”). The Estimated Closing Cash Amount and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) Estimated Working Capital shall be prepared in accordance with the Allocation ScheduleApplicable Accounting Principles.

Pre-Closing Statement. At least three (a3) No later than five Business Days prior to the Closing DateEffective Time of Merger I, the Company shall prepare prepare, in consultation with Parent, and furnish deliver to Parent a written statement (the “Estimate Pre-Closing Statement”), setting which shall set forth in reasonable detail the Company’s (a) good faith estimates estimate of Closing Cash Working Capital (“Estimated Closing CashWorking Capital”), (b) the Debt Payoff Amount as reflected in the Payoff Letter, (c) Transaction Expenses, a list of Persons to whom such Transaction Expenses are payable, and wire instructions therefor, (d) Closing Indebtedness Date Cash and Cash Equivalents and (“Estimated e) the Closing Indebtedness”Date Merger Consideration and aggregate Merger Consideration based upon such items. The Company shall also deliver to Parent any and all reasonable supporting or underlying documentation used in the preparation of the Pre-Closing Statement. The Pre-Closing Statement shall be prepared in the same form as the Illustrative Pre-Closing Statement and Working Capital Examples as attached hereto as Annex A. Parent shall have the right, following Parent’s receipt of the Pre-Closing Statement, to object thereto by delivering written notice to the Company no later than noon EST on the Business Day before the Closing Date. To the extent Parent timely objects to the Pre-Closing Statement (or any component thereof), the Closing Net Working Capital Adjustment (the “Estimated Closing Net Working Capital Adjustment”) and Unpaid Transaction Expenses (“Estimated Unpaid Transaction Expenses”), together with reasonable supporting documentation therefor, and, based on such amounts, a calculation of the Estimated Merger Consideration, the Merger Shares Parent and the Cash Merger ConsiderationCompany shall attempt to resolve their differences; provided that, if Parent and a duly completed Allocation Schedule (using the same calculations and following the same methodologies set forth on Schedule I) updated Company are unable to reflect the amounts referred to in clause (i) of this Section. Parent may until two Business Days resolve any such dispute prior to the Closing Date provide Date, then, subject to Section 2.6, the Company’s calculations as reflected in the Pre-Closing Statement shall control for purposes of all payments to be made at Closing. To the extent Parent and the Company with comments resolve any of their differences prior to the Estimate Statement and Allocation ScheduleClosing, then Parent and the Company shall consider such comments in good faith. The Company shall provide all supporting documentation reasonably requested by Parent in connection with Parent’s review jointly agree on a revised Pre-Closing Statement that will control for purposes of the preliminary and final Estimate payments to be made at the Closing. For the avoidance of doubt, the Pre-Closing Statement and Allocation Schedule. the Closing Statement set forth in Section 2.6 below (and all estimates and calculations of Working Capital), as applicable, shall be prepared in accordance with the Accounting Methodology, except that the Closing Statement (and all calculations of Working Capital) shall (a) not include any purchase accounting or other adjustment arising out of the consummation of the transactions contemplated herein, (b) Notwithstanding anything to the contrary in this Agreement or not be impacted by any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf action of Parent, Merger Sub, the Surviving Company or any of their respective Affiliates, and (xc) it is expressly acknowledged and agreed that in the preparation case of the Allocation Schedule and calculations of Working Capital, shall only include the allocation same line items included in the example calculation set forth therein are the sole responsibility of the Equityholders and the Company and that Parent, Merger Sub, the Surviving Company and the Exchange Agent and their respective Affiliates shall be entitled to rely on the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event shall Parent, Merger Sub or, after the Effective Time, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) in accordance with the Allocation Schedule.Annex A.

Pre-Closing Statement. At least five (a5) No later than five Business Days prior to the Closing Date, the Company shall prepare and furnish deliver to Parent Buyer a written statement (the “Estimate Pre-Closing Statement”), ) setting forth in reasonable detail the Company’s good faith estimates estimate of (A) the amount of Closing Cash (the “Estimated Closing Cash”), Closing Indebtedness (“Estimated Closing Indebtedness”), B) the Closing Net Working Capital Adjustment (the “Estimated Closing Net Working Capital AdjustmentCapital”), (C) and Unpaid the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Unpaid Closing Transaction Expenses”), together with reasonable supporting documentation therefor, and, and (E) based on such amountsthe foregoing, a the calculation of the Adjustment Amount (the “Estimated Merger ConsiderationAdjustment Amount”), together with calculations demonstrating each component thereof, as well as the Merger Shares amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Cash Merger Consideration, Accounting Rules. Seller shall provide Company reasonable documentation and a duly completed Allocation Schedule (using access to relevant personnel as needed to support calculation of the same calculations and following components of the same methodologies set forth on Schedule I) updated to reflect the amounts referred to in clause (i) of this Section. Parent may until two Business Days Pre-Closing Statement prior to the Closing Date provide Date. Buyer shall be entitled to review the Pre-Closing Statement and the materials and information used by the Company with comments to in preparing the Estimate Statement and Allocation SchedulePre-Closing Statement, and the Company shall consider such comments in good faithfaith any comments of Buyer with respect to the Pre-Closing Statement prior to the Closing Date. The Company amounts set forth in the Pre-Closing Statement shall provide all supporting documentation reasonably requested by Parent in connection with Parent’s review be binding on the Parties for purposes of the preliminary Closing Payments and final Estimate Statement and Allocation Schedule. (b) Notwithstanding anything to in the contrary in this Agreement or event of any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Merger Sub, the Surviving Company or any of their respective Affiliates, (x) it is expressly acknowledged and agreed that the preparation of the Allocation Schedule and the allocation set forth therein are the sole responsibility of the Equityholders and disagreement between the Company and that Parent, Merger SubBuyer as to the Pre-Closing Statement, the Surviving Company and Company’s version of the Exchange Agent and their respective Affiliates Pre-Closing Statement shall be entitled to rely on the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event shall Parent, Merger Sub or, after the Effective Time, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) in accordance with the Allocation Scheduleused.

Pre-Closing Statement. 3.2.1 The Sellers, the Acquiring Party and the Purchaser acknowledge that the Purchase Price is (ainter alia) based on the assumption that on the Closing Date, the Closing External Debt Amount shall be equal to EUR 0 (zero euro) and that the Closing Net Working Capital Amount shall be equal to the Reference Net Working Capital Amount. [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. 3.2.2 No later less than five Business Days prior to the expected Closing Date, the Company Sellers shall prepare deliver to the Acquiring Party and furnish to Parent the Purchaser a written statement in the form of a spreadsheet (the “Estimate Pre-Closing Statement”) in the format as included in Schedule 5 (containing the financials as per 30 June 2015 as a benchmark), setting forth in reasonable detail the Company’s out their good faith estimates of Closing Cash (“Estimated Closing Cash”which estimates shall be calculated on bases and principles which have been applied for the 2014 Accounts), Closing Indebtedness (“Estimated Closing Indebtedness”), of the Closing Net Working Capital Adjustment Amount as well as the Closing Cash Amount and of the Closing External Debt Amount (respectively the “Estimated Closing Net Working Capital Adjustment”) and Unpaid Transaction Expenses (Amount, “Estimated Unpaid Transaction Expenses”), together with reasonable supporting documentation therefor, and, based on such amounts, a calculation of the Estimated Merger Consideration, the Merger Shares Closing Cash Amount” and the Cash Merger Consideration, and a duly completed Allocation Schedule (using the same calculations and following the same methodologies set forth on Schedule I) updated to reflect the amounts referred to in clause (i) of this Section. Parent may until two Business Days prior to the “Estimated Closing Date provide the Company with comments to the Estimate Statement and Allocation ScheduleExternal Debt Amount”, and the Company shall consider such comments in good faithEstimated Closing Cash Amount minus the Estimated Closing External Debt Amount being the “Estimated Closing Net Cash Amount”). The Company Acquiring Party, the Purchaser and the Sellers shall provide all supporting documentation reasonably requested by Parent in connection with Parent’s have three Business Days from the receipt thereof to review of the preliminary and final Estimate Pre-Closing Statement and Allocation Schedule. (b) Notwithstanding anything use their respective good faith efforts to the contrary in agree on any modification thereof. For this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Merger Subpurpose, the Surviving Company or Acquiring Party, the Purchaser and Sellers shall have access to any of their respective Affiliatesdocumentation, (x) it is expressly acknowledged books, records and agreed that accounts relevant to the preparation of the Allocation Schedule Pre-Closing Statement. Failing agreement between the Acquiring Party, the Purchaser and the allocation set forth therein are Sellers, that the sole responsibility of the Equityholders and the Company and that Parent, Merger Sub, the Surviving Company and the Exchange Agent and their respective Affiliates Pre-Closing Statement shall be entitled to rely on finally determined by the Allocation Schedule, without any obligation to investigate or verify Sellers acting in good faith no later than the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event shall Parent, Merger Sub or, after Business Day immediately preceding the Effective Time, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) in accordance with the Allocation Scheduleexpected Closing Date.

Pre-Closing Statement. (a) No later than five three Business Days prior to before the Closing Date, the Company shall will prepare and furnish deliver to Parent a written and the Purchaser an unaudited statement (the “Estimate Pre-Closing Statement”), which will be prepared in accordance with GAAP as applied in the preparation of the Company Financial Statements (the “Accounting Principles”), setting forth in reasonable detail the Company’s good faith estimates of each of (i) the Estimated Aggregate Consideration; (ii) the aggregate amount of all Cash of the Company as of 11:59 p.m. on the day immediately preceding the Closing Cash Date (the “Estimated Closing Cash”), ; (iii) the aggregate amount of all Indebtedness of the Company as of 11:59 p.m. on the day immediately preceding the Closing Indebtedness Date (the “Estimated Closing Indebtedness”), ; (iv) the estimated Company Transaction Expenses of the Company as of 11:59 p.m. (Pacific Time) on the day immediately preceding the Closing Net Working Capital Adjustment Date (the “Estimated Closing Net Working Capital Adjustment”) and Unpaid Transaction Expenses (“Estimated Unpaid Transaction Expenses”); and (v) the aggregate amount of Trade Payables as of 11:59 p.m. (Pacific Time) on the day immediately preceding the Closing Date (the “Estimated Closing Trade Payables”). In addition, together at least three Business Days before the Closing Date, the Company will deliver to Parent and the Purchaser a funds flow memorandum in form and substance reasonably acceptable to Parent and the Purchaser setting forth payment instructions with reasonable supporting documentation thereforrespect to each payment to be made on the Closing Date. The Company will consult with Parent, andthe Purchaser and their accountants with respect to the preparation of the Pre-Closing Statement, based on such amounts, and the Pre-Closing Statement will be in form and substance reasonably satisfactory to Parent and the Purchaser. The Pre-Closing Statement will be accompanied by reasonably detailed schedules indicating a calculation of the Estimated Merger Aggregate Consideration, the Merger Shares and Estimated Closing Cash, the Cash Merger ConsiderationEstimated Closing Indebtedness, and a duly completed Allocation Schedule (using the same calculations and following the same methodologies set forth on Schedule I) updated to reflect the amounts referred to in clause (i) of this Section. Parent may until two Business Days prior to the Estimated Closing Date provide the Company with comments to the Estimate Statement and Allocation ScheduleTransaction Expenses, and the Company shall consider such comments in good faith. The Company shall provide all supporting documentation reasonably requested by Parent in connection with Parent’s review of the preliminary and final Estimate Statement and Allocation ScheduleEstimated Closing Trade Payables. (b) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Merger Sub, the Surviving Company or any of their respective Affiliates, (x) it is expressly acknowledged and agreed that the preparation of the Allocation Schedule and the allocation set forth therein are the sole responsibility of the Equityholders and the Company and that Parent, Merger Sub, the Surviving Company and the Exchange Agent and their respective Affiliates shall be entitled to rely on the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and (y) in no event shall Parent, Merger Sub or, after the Effective Time, the Surviving Company, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Merger Sub, the Surviving Company, the Exchange Agent and their respective Affiliates) in accordance with the Allocation Schedule.