Determination of Closing Adjustment. No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a statement in form and substance reasonably satisfactory to Parent (the “Closing Statement”), certified by the Chief Financial Officer of the Company, setting forth, in each case as of 11:59 p.m. Eastern Time on the Closing Date, (i) an estimated balance sheet of the Company and the Company Subsidiary (the “Estimated Closing Balance Sheet”), (ii) a good faith estimate of the aggregate amount of Cash (the “Estimated Cash”), (iii) a good faith estimate of the aggregate amount of Indebtedness (the “Estimated Indebtedness”), (iv) a good faith estimate of the Net Working Capital (the “Estimated Net Working Capital”), together with a reasonably detailed explanation of the calculation thereof, (v) a good faith estimate of the aggregate amount of Company Transaction Expenses (“Estimated Company Transaction Expenses”), (vi) the Estimated Closing Consideration, the Common Stock Per Share Value, and the Warrant Closing Consideration, together with supporting calculations and documentation of such calculations, as reasonably requested by Parent, and (vii) the Fully-Diluted Common Stock, together with any additional detail reasonably requested by Parent. Without limiting the definitions set forth in this Agreement, the Estimated Closing Balance Sheet shall be prepared in accordance with GAAP and the calculations set forth in the Closing Statement shall be prepared in accordance with GAAP, using the methodology set forth in Annex I (as applicable) and, to the extent consistent with GAAP and Annex I, using the same accounting principles, practices, methodologies and policies, including the use of the same line items and line item entries, set forth on and used in the preparation of the Company Financial Statements. The principles, practices, methodologies and policies determined in accordance with the immediately preceding sentence are referred to herein as the “Transaction Accounting Principles”.
Determination of Closing Adjustment. No later than three (3) Business Days prior to the Closing, the Company shall provide Buyer with a written statement certified by an executive officer of the Company (the “Estimated Closing Statement”) of its good faith estimate of Working Capital as of the close of business on the day prior to the date hereof (“Estimated Working Capital”), its good faith estimate of the aggregate amount of all Cash of the Company as of the close of business on the day prior to the date hereof (“Estimated Cash”), its good faith estimate of the aggregate amount of all Indebtedness of the Company as of immediately prior to the Closing (“Estimated Indebtedness”), its good faith estimate of the aggregate amount of all Transaction Expenses as of the Closing (“Estimated Transaction Expenses”), and the amount, if any, by which the Purchase Price is to be adjusted as a result thereof. The Company shall reasonably consult with Buyer prior to delivery of the Estimated Closing Statement; provided, that in no event shall such consultation or the delivery of such Estimated Closing Statement be deemed to constitute the agreement of Buyer to any of the estimates or amounts set forth in such Estimated Closing Statement, and in no way shall delivery of the Estimated Closing Statement or the consummation of the Closing be construed as a waiver by Buyer of its rights under this Section 2.3. The Estimated Working Capital, Estimated Cash, Estimated Indebtedness and Estimated Transaction Expenses set forth in the Estimated Closing Statement (i) will be prepared in accordance with the definitions thereof and, in the case of Estimated Working Capital, Estimated Cash and Estimated Indebtedness, the standards and methods used in the Financial Statements, applied consistently, and (ii) will disregard any and all effects on the assets and Liabilities of the Company as a result of the transactions contemplated by this Agreement (including any financing arrangements entered into by Buyer or any of its Affiliates in connection therewith).
Determination of Closing Adjustment. The amount of the Closing ----------------------------------- Adjustment shall be determined in the following manner:
Determination of Closing Adjustment. The "Closing Adjustment" shall equal (i) the amount, if any, by which the actual amount of cash and the fair market value of the marketable securities of the Company and the Company Subsidiary on the Closing Date is less than (a) the estimated amount of cash and the estimated value of the marketable securities of the Company as set forth on the Estimated Balance Sheet required to be delivered to Acquiror pursuant to Section 7.02(k) of this Merger Agreement (in the event that the proviso set forth in clause (c) of the definition of "Adjusted Merger Amount" did not prevent the balance of such clause (c) from being taken into account in the preparation of the Estimated Balance Sheet) or (b) $1,700,000 (in the event that such proviso did prevent the balance of such clause (c) from being taken into account in the preparation of the Estimated Balance Sheet), provided however, if, on the Closing Date, the cash and fair market value of the marketable securities is less than $1,700,000 and the net asset value of the Company, calculated in accordance with generally accepted accounting principles, is greater than or equal to Five Million Eight Hundred Seventy Five Thousand Dollars ($5,875,000), then the amount by which the cash and the fair market value of the marketable securities owned by the Company is less than $1,700,000 shall not be deducted for purposes of determining the Closing Adjustment, plus (ii) any Losses sustained by Acquiror or Surviving Corporation as a result of any breaches of the representations and warranties of the Company contained in this Merger Agreement and which are discovered by the Acquiror as a result of the audit of the consolidated financial statements of the Company as of the Closing Date by Xxxxxx Xxxxxxxx LLP, the Acquiror's independent public accountants, as hereinafter provided. The Company will use its best efforts to close its books and records for the period ending on the Closing Date within twenty (20) days after the Closing Date and shall deliver to the Acquiror or, at the request of the Acquiror, to Acquiror and Xxxxxx Xxxxxxxx LLP, such books and records as shall be requested by Acquiror or Xxxxxx Xxxxxxxx LLP to enable Xxxxxx Xxxxxxxx LLP to perform an audit of the consolidated financial statements of the Company as of the Closing Date and to determine the amount of the Closing Adjustment based thereon. Upon receipt of such books and records, the Acquiror shall use its best efforts to cause Xxxxxx Xxxxxxxx LLP to complete ...
Determination of Closing Adjustment. At least three (3) days prior to the date of this Agreement, the Company delivered to Buyer a statement (the “Preliminary Closing Statement”) which sets forth a good faith estimate of the following: (i) the aggregate amount of all Cash of the Company as of immediately prior to the Closing (“Estimated Cash”), (ii) the aggregate amount of all Indebtedness of the Company as of immediately prior to the Closing (including any per diem interest accruals, prepayment fees, breakage costs, and other Indebtedness amounts to be accrued or paid prior to or concurrently with the Closing) (“Estimated Indebtedness”), (iii) all Sellers’ Transaction Expenses (“Estimated Sellers’ Transaction Expenses”), and (iv) the Working Capital as of immediately prior to the Closing (the “Estimated Working Capital”), in each case as set forth on a schedule in reasonable detail, along with reasonable supporting documentation (and, in the case of Estimated Sellers’ Transaction Expenses, together with wire instructions and invoices for each payee), and the resulting calculation of the Closing Cash Consideration (the “Estimated Closing Cash Consideration”) and the Distribution Allocation Schedule reflecting such calculation. The Preliminary Closing Statement shall be prepared by the Company in accordance with the Accounting Methodology.
Determination of Closing Adjustment. No later than three (3) Business Days prior to the anticipated Closing Date, the chief financial officer of the Company shall have delivered to Parent a certificate (the “Estimated Closing Statement”) setting forth (i) the Company’s good faith estimate of (A) the aggregate amount of Company Cash as of the Year-End Measurement Time (“Estimated Company Cash”), (B) the aggregate amount of Net Working Capital as of the Year-End Measurement Time (“Estimated Net Working Capital”),
Determination of Closing Adjustment. No later than two (2) Business Days prior to the Closing, Seller shall provide Buyer with a certificate executed by the Chief Financial Officer of Seller (the “Estimated Closing Date Statement”) setting forth in reasonable detail (i) a good faith estimate of Closing Working Capital (“Estimated Working Capital”) (prepared in accordance with the schedule attached as Section 2.06(a) of the Disclosure Schedules), (ii) a good faith estimate of the aggregate amount of all Indebtedness of Seller as of the open of business on the Closing Date (“Estimated Indebtedness”), and (iii) the calculation of the Estimated Closing Adjustment Amount, together with such schedules and data with respect to the determination thereof as may be appropriate to support the calculations therein. The Estimated Closing Date Statement shall be prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Audited Financial Statements for the most recent fiscal year end, subject only to the modifications and limitations set forth on Section 2.06(a) of the Disclosure Schedules. Buyer and its Representatives shall have an opportunity to review and reasonably comment on the Estimated Closing Date Statement delivered by Seller, which shall be subject to Buyer’s reasonable approval.
Determination of Closing Adjustment. No later than three (3) Business Days prior to the Closing, the Company shall cause to be prepared and delivered to Purchaser a statement setting forth (i) a good faith estimate of Working Capital (prepared in accordance with the “Working Capital Schedule” attached hereto) as of the close of business on the day prior to the Closing Date (“Estimated Working Capital”), (ii) a good faith estimate of the aggregate amount of all Cash of the Company Group as of the close of business on the day prior to the Closing Date (“Estimated Cash”), (iii) a good faith estimate of the aggregate amount of all Indebtedness of the Company Group as of immediately prior to the Closing (“Estimated Indebtedness”) and after giving effect to the repayment of all Repaid Indebtedness, (iv) a good faith estimate of the aggregate amount of all Closing Income Taxes as of the Closing (the “Estimated Closing Income Taxes”) and (iv) the amount by which the Aggregate Initial Consideration is to be adjusted on account of the foregoing.
Determination of Closing Adjustment. No later than one (1) Business Day prior to the Closing Date, the Company shall provide Parent with its reasonably detailed good faith estimate of each of the Closing Cash (the “Estimated Closing Cash”) and Working Capital (the “Estimated Working Capital”) as of 11:59 pm Pacific time on the day prior to the Closing Date and the amount, if any, by which the Initial Merger Consideration is to be adjusted in accordance with its definition herein.
Determination of Closing Adjustment. The Company has provided the Purchaser with a written statement attached hereto as Exhibit B (the “Estimated Closing Statement”) setting forth (i) its good faith estimate of (A) Working Capital as of immediately prior to the Closing (“Estimated Working Capital”), (B) the aggregate amount of all Cash of the Company as of immediately prior to the Closing (“Estimated Cash”), (C) the aggregate amount of all Indebtedness of the Company as of immediately prior to the Closing (“Estimated Indebtedness”), and (D) the aggregate amount of all Transaction Expenses as of immediately prior to the Closing (“Estimated Transaction Expenses”), (ii) a funds flow spreadsheet (the “Funds Flow”) setting forth (A) each Seller’s allocation of the Closing Payment Amount based on such Seller’s Pro Rata Share (as adjusted pursuant to the last sentence of Section 2.2(b)), and (B) true, complete and correct account and wire information for the Seller Representative and for each (1) third-party lender with respect to whom payment will be made pursuant to Section 2.2(e), and (2) service provider with respect to whom payment will be made pursuant to Section 2.2(f), in each case of the foregoing clauses (i) and (ii), reasonably detailed supporting documentation and information. The parties agree that the Purchaser will be entitled to rely fully on the Funds Flow and, upon transfer of such funds pursuant to the Funds Flow, the Purchaser will have no further Liability for the payment of any portion thereof from and after the Closing.
