Closing Schedule. Not less than two (2) Business Days prior to the Closing Date, BiteSquad shall deliver to Parent a statement (the “BiteSquad Closing Schedule”), signed by the Chief Financial Officer of BiteSquad, which sets forth the following, as of immediately prior to the Effective Time (or at such other time as specified herein): (a) (i) the name and address of each BiteSquad Unitholder, (ii) the number and type of Membership Interests held by each BiteSquad Unitholder, (iii) where applicable, the respective certificate numbers held by each BiteSquad Unitholder, (iv) the Cash Portion to be paid to each BiteSquad Unitholder at the Closing in respect of each type of Membership Interest held by such BiteSquad Unitholder (as adjusted to take into account any required repayment of, or right of offset permitted under, any BiteSquad Notes Receivable), and (v) the Stock Portion to be paid to each BiteSquad Unitholder at the Closing in respect of each type Membership Interest held by such BiteSquad Unitholder and (vi) the number of shares of Parent Common Stock that each BiteSquad Unitholder will receive at the Closing that will not be subject to a Stockholder Lockup Agreement (the “Non-Subject Shares”), and with respect to (iv) and (v), in each case, pursuant to Section 3.3 and as adjusted pursuant to Section 3.5(g); (i) the name and address of each holder of Incentive Units (each, an “Incentive Unitholder”), (ii) the grant date and Threshold Amount of each Incentive Unit held by each Incentive Unitholder, (iii) the aggregate number of In-the-Money Incentive Units, (iv) the Incentive Unit Cash Amount to be paid to each Incentive Unitholder at Closing (as adjusted to take into account any required repayment of, or right of offset permitted under, any BiteSquad Notes Receivable, without duplication of any adjustment included Section 3.2(a)(iv)), (v) the Incentive Unit Stock Amount to be paid to each Incentive Unitholder at the Closing, (vi) the number of Non-Subject Shares that each In-the-Money Incentive Unitholder will receive at the Closing and (vii) the number of In-the-Money Incentive Units held by each Incentive Unitholder that are unvested or otherwise subject to forfeiture or redemption conditions at the Effective Time, and with respect to (iv) and (v), in each case, pursuant to Section 3.3 and as adjusted pursuant to Section 3.5(g); and (c) a good faith estimate of (i) Net Working Capital, as of 11:59 p.m. New York time on the day immediately preceding the Closing Date, (ii) the Transaction Expenses as of immediately prior to the Closing, (iii) Indebtedness as of immediately prior to the Closing and (iv) BiteSquad Cash as of immediately prior to the Closing, and a calculation of the estimated Cash Consideration (the “Estimated Cash Consideration”), which estimates shall be prepared, and the Estimated Cash Consideration and all components therein shall be determined in a manner consistent with the definitions set forth herein based on BiteSquad’s books and records and other information available at the time, in accordance with GAAP and as calculated using the same methodologies, principles, conventions, policies and procedures as were used in the preparation of the example calculation of Net Working Capital set forth on Exhibit A (it being understood that no representation or warranty is being made by BiteSquad or any other Person with respect to the financial data set forth in such Exhibit). (d) Notwithstanding anything in this Section 3.2 to the contrary, the Cash Portion and the Stock Portion that would be payable to the Blocker Corp if the Blocker Corp were participating in the Merger (rather than the sale of common stock of the Blocker Corp pursuant to the Blocker Agreement) at the Closing shall be allocated to the aggregate Cash Portion and Stock Portion of the other BiteSquad Unitholders and In-the-Money Incentive Unitholders and disbursed to such other BiteSquad Unitholders and In-the-Money Incentive Unitholders pro-rata in accordance with their Percentage Interest (without taking into account the Percentage Interest of the Blocker Corp). The Parties acknowledge and agree that, to the extent permitted by applicable Law, (i) at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, BiteSquad or the Blocker Corp, the Membership Interests owned by the Blocker Corp shall be cancelled and the Blocker Corp shall be treated as not having sold or otherwise exchanged any of its Membership Interests in connection with the Merger and (ii) the sale of the Membership Interests pursuant to this Agreement shall be treated as a purchase by Parent of all of the Membership Interests other than the Membership Interests held by the Blocker Corp.
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Closing Schedule. Not less than two five (25) Business Days prior to Closing, the Closing Date, BiteSquad Company shall deliver to Parent provide Purchaser with a statement schedule in writing (the “BiteSquad Closing Schedule”), signed by the Chief Financial Officer of BiteSquad, which sets ) setting forth the following, as :
(i) A calculation of immediately prior to the Effective Time following (or at such other time as specified hereinincluding all components thereof):
(aA) Change of Control Waiver Fees and Expenses Amount (itogether with the applicable payee(s) and account details);
(B) Other Change of Control Consent Fees Amount (together with the applicable payee(s) and account details);
(C) the name amount of Leakage;
(D) Aggregate Closing Purchase Price;
(E) Aggregate Closing Common Purchase Price;
(F) Aggregate Option Exercise Price;
(G) Option Closing Merger Consideration;
(H) Per Share Closing Merger Consideration;
(I) Series A Aggregate Liquidation Preference;
(J) the Equityholders’ Representative Expense Amount;
(K) the Leakage Reserve Holdback Amount;
(L) the amount of any Transfer Taxes;
(M) the amount of D&O Insurance premiums, fees and address of each BiteSquad Unitholder, expenses; and
(ii) For each Equityholder:
(A) a calculation of the number and type portion of Membership Interests held by each BiteSquad Unitholder, the Aggregate Closing Purchase Price and/or Series A Aggregate Liquidation Preference (iiiincluding all components thereof) where applicable, the respective certificate numbers held by each BiteSquad Unitholder, (iv) the Cash Portion to be paid to each BiteSquad Unitholder at the Closing in such Equityholder;
(B) such Equityholder’s Pro Rata Percentage with respect of to each type of Membership Interest held by such BiteSquad Unitholder (as adjusted to take into account any required repayment of, or right of offset permitted under, any BiteSquad Notes Receivable), and (v) the Stock Portion to be paid to each BiteSquad Unitholder at the Closing in respect of each type Membership Interest held by such BiteSquad Unitholder and (vi) the number of shares of Parent Common Stock that each BiteSquad Unitholder will receive at the Closing that will not be subject to a Stockholder Lockup Agreement (the “Non-Subject Shares”), and with respect to (iv) and (v), in each case, pursuant to Section 3.3 and as adjusted pursuant to Section 3.5(g)Company Equity Interests held;
(iC) the name amount (expressed as a dollar and address a percentage) to be allocated to each Minority Investor as a portion of each holder of Incentive Units the Equityholders’ Representative Expense Amount;
(each, an “Incentive Unitholder”), (iiD) the grant date amount (expressed as a dollar and Threshold Amount of each Incentive Unit held by each Incentive Unitholder, (iiia percentage) the aggregate number of In-the-Money Incentive Units, (iv) the Incentive Unit Cash Amount to be paid allocated to each Incentive Unitholder at Closing (Equityholder as adjusted to take into account any required repayment of, or right a portion of offset permitted under, any BiteSquad Notes Receivable, without duplication of any adjustment included Section 3.2(a)(iv)), (v) the Incentive Unit Stock Amount to be paid to each Incentive Unitholder at the Closing, (vi) the number of Non-Subject Shares that each In-the-Money Incentive Unitholder will receive at the Closing and (vii) the number of In-the-Money Incentive Units held by each Incentive Unitholder that are unvested or otherwise subject to forfeiture or redemption conditions at the Effective Time, and with respect to (iv) and (v), in each case, pursuant to Section 3.3 and as adjusted pursuant to Section 3.5(g)Leakage Reserve Holdback Amount; and
(cE) a good faith estimate for any Equity Award Holder, whether payroll or employment Taxes are required to be withheld from payments in respect of (i) Net Working Capitalany Company Equity Awards held by such Equity Award Holder. Purchaser, as of 11:59 p.m. New York time Merger Sub and their respective Affiliates shall be entitled to rely on the day immediately preceding the Closing Date, (ii) the Transaction Expenses as of immediately prior to the Closing, (iii) Indebtedness as of immediately prior to the Closing and (iv) BiteSquad Cash as of immediately prior to the Closing, and a calculation of the estimated Cash Consideration (the “Estimated Cash Consideration”), which estimates shall be prepared, and the Estimated Cash Consideration and all components therein shall be determined Schedule in a manner consistent with the definitions set forth herein based on BiteSquad’s books and records and other information available at the time, in accordance with GAAP and as calculated using the same methodologies, principles, conventions, policies and procedures as were used in the preparation of the example calculation of Net Working Capital set forth on Exhibit A (it being understood that no representation or warranty is being made by BiteSquad or any other Person with respect to the financial data set forth in such Exhibit)making payments under this Agreement.
(d) Notwithstanding anything in this Section 3.2 to the contrary, the Cash Portion and the Stock Portion that would be payable to the Blocker Corp if the Blocker Corp were participating in the Merger (rather than the sale of common stock of the Blocker Corp pursuant to the Blocker Agreement) at the Closing shall be allocated to the aggregate Cash Portion and Stock Portion of the other BiteSquad Unitholders and In-the-Money Incentive Unitholders and disbursed to such other BiteSquad Unitholders and In-the-Money Incentive Unitholders pro-rata in accordance with their Percentage Interest (without taking into account the Percentage Interest of the Blocker Corp). The Parties acknowledge and agree that, to the extent permitted by applicable Law, (i) at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, BiteSquad or the Blocker Corp, the Membership Interests owned by the Blocker Corp shall be cancelled and the Blocker Corp shall be treated as not having sold or otherwise exchanged any of its Membership Interests in connection with the Merger and (ii) the sale of the Membership Interests pursuant to this Agreement shall be treated as a purchase by Parent of all of the Membership Interests other than the Membership Interests held by the Blocker Corp.
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