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.
Merger Consideration Certificate. Attached to Part 2.3(h) of the Disclosure Schedule is a certificate (the “Merger Consideration Certificate”), duly executed on behalf of the Company by the chief financial officer of the Company, containing the following information, all of which is true and accurate as of the Closing: (i) the aggregate amount of Company Transaction Expenses: (aa) paid prior to or at the Closing; and (bb) payable after the Closing (with respect to services performed or actions taken prior to the Closing); (ii) the Closing Indebtedness Amount; (iii) a schedule of all accounts payable of the Company and each of its Subsidiaries as of November 30, 2009 and the aging of such accounts payable; (iv) the name and address of record of each Person who is a stockholder of the Company immediately prior to the Effective Time; (v) the number of shares of Company Capital Stock of each class and series held by each such stockholder immediately prior to the Effective Time; (vi) the consideration that each stockholder is entitled to receive at Closing pursuant to Section 1; and (vii) the amount, if any, required to be withheld (under applicable Legal Requirements) from the consideration that each stockholder is entitled to receive at Closing pursuant to Section 1. As of the Effective Time, there will be no unpaid or outstanding Company Transaction Expenses, other than the amount set forth in Part 2.3(h) of the Disclosure Schedule which will be paid in January, 2010 out of the loans constituting Closing Indebtedness Amount. All Company Transaction Expenses have been satisfied and paid in full prior to or at the Closing out of funds received by the Company in connection with certain loans to the Company which constitute a portion of the Closing Indebtedness Amount. There is no Closing Indebtedness Amount, other than that which is required to be repaid in exchange for (and which will be canceled after receipt of) shares of Parent Common Stock pursuant to “pay-off” letters delivered by the Company to Parent prior to the date of this Agreement.
Merger Consideration Certificate. The Merger Consideration Certificate;
Merger Consideration Certificate. Shareholders and the Company shall, not later than three (3) business days prior to the Closing Date, have delivered to Holdings the Merger Consideration Certificate.
Merger Consideration Certificate. The Company shall have delivered to Parent a certificate signed by the Chief Executive Officer of the Company setting forth the Merger Consideration to be paid to each holder in respect of their shares of Company Capital Stock, Company Options and Company Warrants.
Merger Consideration Certificate. Two Business Days prior to the Closing Date, the Company shall deliver to Parent a draft of the Merger Consideration Certificate, which sets forth, for each holder of Company Common Stock and each holder of Company Options, such person’s allocation of the Merger Consideration and such person’s allocation of the Escrow Fund pursuant to this Article 2 based on assumptions set forth therein. At the Closing, the Stockholders’ Agent shall deliver to Parent the Merger Consideration Certificate setting forth the final calculation of such amounts.
Merger Consideration Certificate. (a) No later than [*] the Company shall deliver to Parent a certificate (in a form and substance reasonably satisfactory to Parent) duly executed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company (the “Estimated Merger Consideration Certificate”) setting forth the Company’s good faith estimates of the following information (collectively, the “Merger Consideration Certificate Data”), which shall be set forth on an accompanying spreadsheet: [*] The spreadsheet accompanying the Estimated Merger Consideration Certificate shall show with detailed specificity the basis for the calculation of each element of the Merger Consideration Certificate Data and shall break out all payments that are subject to withholding Taxes on a separate worksheet for payment by Parent or the Surviving Corporation rather than by the Paying Agent.
Merger Consideration Certificate. The capitalization of the Company, including outstanding Company Options and the terms thereof, immediately prior to the Effective Time shall be set forth on a Merger Consideration certificate to be delivered by the Company to the Parent at Closing (the “Merger Consideration Certificate”). Parent and the Surviving Corporation shall be entitled to rely on the Merger Consideration Certificate in connection with payment of the Merger Consideration pursuant to Section 2.1 and the Option Payments pursuant to Section 2.4. Should the actual number of shares of Company Common Stock or Company Options outstanding as of the Effective Time differ from that set forth on the Merger Consideration Certificate, the amount of Merger Consideration payable per share and the Option Payments shall be adjusted accordingly.
Merger Consideration Certificate. The provisions of the Merger Consideration Certificate conform to, are in compliance with and accurately reflect the provisions of the Certificate of Incorporation and the Company Management Incentive Plan.
Merger Consideration Certificate. The Company shall have delivered a duly-executed Merger Consideration Certificate to Parent.
