Common use of Preparation and Delivery of Pre-Closing Statement Clause in Contracts

Preparation and Delivery of Pre-Closing Statement. No later than four (4) Business Days prior to the Closing Date, the Company shall prepare and deliver, or cause to be prepared and delivered, to Parent a statement (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate of (i) the aggregate exercise price of all Company Options and Company Warrants, (ii) the amount of Closing Cash, (iii) the amount of Closing Net Working Capital, (iv) the amount of Closing Indebtedness, (v) the amount of Unpaid Transaction Expenses and (vi) the Aggregate Exercise Loans Amount, together with a calculation of the Merger Consideration based on the foregoing amounts (the amount so calculated being referred to herein as the “Estimated Merger Consideration”) and an estimate of the Per Share Merger Consideration calculated using the Pre-Closing Capitalization Table (as defined below) (the “Estimated Per Share Merger Consideration”); provided, however, that Parent shall have the right to review and comment on the Pre-Closing Statement upon its delivery by the Company, and the Company shall thereafter consider in good faith any of Parent’s comments on the Pre-Closing Statement. The Pre-Closing Statement shall be prepared in accordance with GAAP using the same accounting principles, practices, procedures, policies and methods, with consistent classifications, judgments, inclusions, exclusions and valuation and estimation methodologies that were employed in the preparation of the Financial Statements, except as set forth on Annex C. For the avoidance of doubt, Closing Cash, Closing Net Working Capital and Closing Indebtedness shall entirely disregard any and all effects on the assets and liabilities of the Company and its Subsidiaries of (A) purchase accounting adjustments or other changes arising from or resulting as a consequence of the consummation of the Merger and the other transactions contemplated hereby, (B) any financing or refinancing arrangements entered into at any time by Parent or any of its Affiliates, including the Company as of the Effective Time or (C) any other transaction entered into by Parent or any of its respective Affiliates in connection with the consummation of the Merger and the other transactions contemplated hereby, including payments pursuant to Section 1.6. The Pre-Closing Statement shall include, as an exhibit, a capitalization table (the “Pre-Closing Capitalization Table”) setting forth the name of each Securityholder, the number(s) and type(s) of shares of Company Capital Stock, including the shares of Company Capital Stock issuable upon the exercise of Company Warrants and Company Options, held by each such Securityholder and the Estimated Per Share Merger Consideration, Warrant Consideration or Option Consideration to which each such Securityholder is entitled.

Preparation and Delivery of Pre-Closing Statement. (a) No later than four three (43) Business Days prior to the Closing Date, the Company shall prepare and deliver, or cause to be prepared and delivered, to Parent a statement (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate and calculation of (i) the aggregate exercise price amount of all Company Options and Company WarrantsClosing Cash, (ii) the amount of Closing CashNet Working Capital and the Net Working Capital Adjustment Amount resulting therefrom (if any), (iii) the amount of Closing Net Working CapitalIndebtedness, and (iv) the amount of Closing Indebtedness, (v) the amount of Unpaid Transaction Expenses and (vi) the Aggregate Exercise Loans AmountExpenses, together with a calculation of the Merger Consideration based on the foregoing amounts (the amount so calculated being referred to herein as the “Estimated Merger Consideration”). During the period after delivery of such Pre-Closing Statement and prior to the Closing Date, (i) the Company will cooperate in good faith with Parent in the event that Parent disputes any item set forth in such Pre-Closing Statement; provided that if the Company and an estimate of Parent are not able to mutually agree on any disputed item prior to the Per Share Merger Consideration calculated using Closing Date, the Pre-Closing Capitalization Table Statement provided by the Company, as modified to include any agreed changes, shall be binding for purposes of this Section 1.9 and (ii) Parent and its advisors (including, without limitation, its independent accounting firm) shall be provided with such access to the financial books and records and personnel of the Company and its subsidiaries as defined belowit may reasonably request to enable it to evaluate the calculation of Estimated Merger Consideration (including, for the avoidance of doubt, the calculation of Closing Cash, Closing Indebtedness, Closing Net Working Capital and the Net Working Capital Adjustment Amount resulting therefrom (if any) (the “Estimated Per Share Merger Consideration”and Unpaid Transaction Expenses); provided, however, that Parent shall have the Company may restrict or otherwise prohibit access to any documents or information to the extent that (A) any applicable Law requires the Company to restrict or otherwise prohibit access to such documents or information, (B) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information, (C) access to a Contract to which the Company or a Subsidiary of the Company is a party or otherwise bound that would violate or cause a default under, or give a third party the right to review terminate or accelerate any rights or obligations under, such Contract, or (D) could reasonably be expected to jeopardize the health and comment safety of any Representative of the Company or its Subsidiaries, including in light of any pandemic or epidemic (including COVID-19), any Pandemic Measures, any Protest Event, or any Protest Measures. In the event that the Company does not provide access or information in reliance on the Pre-Closing Statement upon preceding sentence, it shall use its delivery by commercially reasonable efforts to communicate the Companyapplicable information to Parent in a way that would not violate the applicable Law, and the Company shall thereafter consider in good faith any of Parent’s comments on the Pre-Closing Statement. The Pre-Closing Statement shall be prepared in accordance with GAAP using the same accounting principles, practices, procedures, policies and methods, with consistent classifications, judgments, inclusions, exclusions and valuation and estimation methodologies that were employed Contract or obligation result in the preparation waiver of the Financial Statements, except as set forth on Annex C. any privilege. For the avoidance of doubt, the calculations of Closing Cash, Closing Net Working Capital and Closing the Net Working Capital Adjustment Amount resulting therefrom (if any), Indebtedness and Unpaid Transaction Expenses (i) shall be calculated consistent with the definitions set forth herein and (ii) shall entirely disregard any and all effects on the assets and liabilities of the Company and its Subsidiaries of (A) purchase accounting adjustments or other changes arising from or resulting as a consequence of the consummation of the Merger and the other transactions contemplated hereby, (B) any financing or refinancing arrangements entered into at any time at the direction of or by Parent or any of its Affiliates, including the Company as of the Effective Time Affiliates or (C) any other transaction entered into by Parent or any of its respective Affiliates in connection with the consummation of the Merger and the other transactions contemplated hereby, including payments pursuant to Section 1.6. The Pre-Closing Statement shall include, as an exhibit, a capitalization table (the “Pre-Closing Capitalization Table”) setting forth the name of each Securityholder, the number(s) and type(s) of shares of Company Capital Stock, including the shares of Company Capital Stock issuable upon the exercise of Company Warrants and Company Options, held by each such Securityholder and the Estimated Per Share Merger Consideration, Warrant Consideration or Option Consideration to which each such Securityholder is entitled.

Preparation and Delivery of Pre-Closing Statement. No later than four three (43) Business Days prior to the Closing Date, the Company shall prepare and deliver, ,or cause to be prepared and delivered, to Parent a statement (the “"Pre-Closing Statement”") setting forth the Company’s 's good faith estimate of (i) the aggregate exercise price of all In the Money Company Options and Company WarrantsOptions, (ii) the amount of Closing Cash, (iii) the amount of Closing Net Working Capital, (iv) the amount of Closing Indebtedness, (v) the amount of Unpaid Transaction Expenses Expenses, and (vi) the Aggregate Exercise Loans Securityholder Note Amount, together with a calculation of the Merger Consideration based on the foregoing amounts (the Merger Consideration amount so calculated being referred to herein as the “"Estimated Merger Consideration”) "), as well as reasonably detailed supporting documentation for such calculation and an estimate any additional information reasonably requested by Parent. From and after the delivery of the Per Share Merger Consideration calculated using the Pre-Closing Capitalization Table (as defined below) (the “Estimated Per Share Merger Consideration”); provided, however, that Parent shall have the right to review and comment on the Pre-Closing Statement upon until the Closing, the Company shall provide Parent and its delivery by Representatives with reasonable access to the work papers of the Company, the Company's accountants (subject to execution of customary work-paper access letters) or any of its other Representatives, in each case, related to the preparation of the Pre-Closing Statement, as well as to any of the personnel (by phone or in person, if requested), property and facilities and such books and records and other relevant informationof the Company and its Subsidiaries, in each case, related to the preparation of the Pre-Closing Statement, and the Company shall thereafter make reasonably available its personnel knowledgeable about the information used in, and the preparation of, the Pre-Closing Statement and consider in good faith any comments of Parent’s comments on Parent with respect to such amounts and calculations. Prior to, and as a condition to the Closing, such amounts and calculations as finally reflected in the Pre-Closing StatementStatement and the Payment Spreadsbeet shall be reasonably acceptable to Parent. The Pre-Closing Statement Statement, the Estimated Merger Consideration and the components thereof shall be prepared in accordance with GAAP using the same accounting principles, practices, procedures, policies and methods, with consistent classifications, judgments, inclusions, exclusions and valuation and estimation methodologies that were employed in the preparation of the Financial Statements, except as definitions set forth on Annex C. in this Agreement and the Accounting Principles (as defined below). For the avoidance of doubt, Closing Cash, Closing Net Working Capital and Closing Indebtedness _shall entirely disregard -11- **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** any and all effects on the assets and liabilities of the Company and its Subsidiaries of (A) purchase accounting adjustments or other changes arising from or resulting as a consequence of the consummation of the Merger and the other transactions contemplated herebyTransactions, (B) any financing or refinancing arrangements entered into at any time by Parent or any of its Affiliates, including the Company as of the Effective Time Affiliates or (C) any other transaction entered transactionentered into by Parent or any of its respective Affiliates in connection with the consummation of the Merger and the other transactions contemplated herebyTransactions, including payments pursuant to Section 1.6. The Pre-Closing Statement shall include, as an exhibit, a capitalization table 1.6 (Efect of Merger on the “Pre-Closing Capitalization Table”) setting forth the name of each Securityholder, the number(s) and type(s) of shares of Company Capital Stock, including the shares of Company Capital Stock issuable upon of the exercise of Company Warrants and Merger Sub and Company Options, held by each such Securityholder and the Estimated Per Share Merger Consideration, Warrant Consideration or Option Consideration to which each such Securityholder is entitled).