Allocation Schedule. (a) The Company shall prepare and deliver to Parent, in accordance with Section 5.10, to be appended as Exhibit C attached hereto, a preliminary summary of the allocation of proceeds to the Company Equityholders contemplated by Section 2.6, including (i) the Per Share Merger Consideration applicable to each class of Company Capital Stock and the Per Option Cancellation Payments, (ii) the amount of the Payment Fund, the Option Cancellation Payment and the Dissenting Share Amount (if any), (iii) by Company Equityholder, the amount to be distributed to each such Company Equityholder equal to the aggregate Per Share Merger Consideration and (listed out separately) the aggregate Per Option Cancellation Payments, and (iv) by Company Equityholder, such Company Equityholder’s Pro Rata Share. The Company shall, not later than three (3) Business Days prior to the Closing, amend Exhibit C, subject to Parent’s reasonable approval, to reflect the final allocation of proceeds to be paid at the Closing to the Company Equityholders based on the total number shares of Company Capital Stock and Options outstanding immediately prior to the Effective Time and the Estimated Merger Consideration as set forth in the Estimated Closing Date Statement (as amended, the “Allocation Schedule”). The Company shall prepare the Allocation Schedule in accordance with this Agreement, the Certificate of Incorporation, the Bylaws and any other applicable Organizational Documents of the Company.
(b) With respect to:
(i) each Eligible Company Stockholder, the Per Share Merger Consideration and Additional Per Share Merger Consideration (if any) to be received by such Eligible Company Stockholder under this Agreement shall, at the time of and with respect to each payment, be aggregated for all shares of Company Capital Stock held by such Eligible Company Stockholder, and, following such aggregation, any fractional cents shall be rounded to the nearest whole cent; and
(ii) any Eligible Optionholder, his, her or its Per Option Cancellation Payment or any of his, her or its Additional Per Option Cancellation Payments shall, at the time of and with respect to each payment, be aggregated for all Options held by such Eligible Optionholder, and, following such aggregation, any fractional cents shall be rounded to the nearest whole cent.
Allocation Schedule. No later than three Business Days prior to the scheduled Closing Date, the Company shall deliver to CCTS an allocation schedule (the “Allocation Schedule”) setting forth (a) the number of Company Shares held by each Company Shareholder, the number of Company Shares deemed subject to each Company Award held by each holder thereof, as well as whether each such Company Award will be vested or unvested as of immediately prior to the Closing Date, and the number of Company Shares subject to each other warrant, award, convertible security or any other right to subscribe for Company Shares held by each holder thereof, and (b) the number of Holdco Shares that each Company Shareholder, holder of Company Awards or holder of any other option, warrant, award, convertible security or any other right to subscribe for Company Shares is entitled to receive as a result of Company Share Exchange , and (c) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (a) and (b) are, and will be as of immediately prior to the Closing, (i) true and correct in all respects and (ii) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws and, in the case of the Company Awards, the Company Incentive Plan and any applicable grant or similar agreement with respect to any such Company Award. The Company will review any comments to the Allocation Schedule provided by CCTS or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by CCTS or any of its Representatives prior to the issuance of any Holdco Shares. Notwithstanding the foregoing or anything to the contrary herein, the aggregate number of Holdco Shares that each Company Shareholder, holder of Company Awards or holder of other Equity Securities (including a holder of Company Issuance Rights) will have a right to receive pursuant to Section 2.1(a) will be (A) rounded down to the nearest whole number in the event that the fractional Holdco Share that otherwise would be so paid is less than one-half of a Holdco Share and (B) rounded up to the nearest whole number in the event that the fractional Holdco Share that otherwise would be so paid is greater than or equal to one-half of a Holdco Share.
Allocation Schedule. The parties acknowledge and agree that by reason of the status of the LLC as an entity disregarded as separate from its owner pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii), the purchase of the Membership Interests by Buyer from Seller shall be treated as a purchase by Buyer from Seller of all of the assets owned by the LLC (the “Assets”) as of the Closing Date for purposes of federal income Taxes, and a sale of the Assets by Seller to Buyer. The parties agree that the total consideration deemed received by Seller from Buyer pursuant to this Agreement in exchange for the Assets (the “Total Tax Consideration”), including the Purchase Price, the liabilities of the LLC as of the Closing Date and any other relevant items that are properly includible in determining the amount realized by Seller for federal income Tax purposes in connection with the deemed sale of the Assets resulting from sale of the Membership Interests shall be allocated among the Assets in accordance with Section 1060 of the Code. Schedule 8.1(c) sets forth amounts that the parties agree are the fair market values of specific Assets or groups of Assets as of the Closing Date, or the method by which such fair market values shall be determined after the Closing. Within 60 days after the Closing Date, Buyer shall prepare and deliver to Seller an allocation schedule allocating the Total Tax Consideration among the Assets (the “Allocation Schedule”). The Allocation Schedule shall be based upon their fair market values of any Assets set forth on Schedule 8.1(c), and in the case of any other Assets, upon a determination by Buyer of the fair market values of such Assets. Upon receipt of the Allocation Schedule, Seller shall, for a period of 30 days, have the right to review and comment on the Allocation Schedule and Buyer shall make such revisions to the Allocation Schedule as are reasonably requested by Seller and consented to by Buyer, which consent shall not be unreasonably withheld. In the event of any disagreement between Buyer and Seller regarding the Allocation Schedule, such disagreement shall be resolved by the selection of an independent appraiser acceptable to Buyer and Seller to prepare and provide to Buyer and Seller a valuation of the Assets (but not inconsistently with any values agreed by Schedule 8.1(c)). The final mutually agreed upon or determined Allocation Schedule shall be binding on the parties for Tax purposes, and the parties shall file all income Tax Returns ...
Allocation Schedule. No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to HighCape an allocation schedule (the “Allocation Schedule”) setting forth (a) the number and class of shares of Company Stock held by each Company Stockholder, (b) the number of shares of Company Stock subject to each Company Option and Company RSU held by each holder thereof, as well as whether each such Company Option will be a Vested Company Option or an Unvested Company Option as of immediately prior to the Effective Time and the exercise price thereof, (c) the number of shares of HighCape Class A Common Stock, New HighCape Class B Common Stock and Rollover Awards to be allocated to each holder at the Effective Time, (d) Company Cash, (e) Company Indebtedness, (f) the Aggregate Exercise Price, (g) the number of Deemed Acquired Shares, (h) the number of Net Vested Options, (i) the Per Share Merger Consideration Value, (j) the Per Share Calculation Value and (k) a certification, duly executed by an authorized officer of the Company, that (i) the information delivered pursuant to clauses (a) and (b) is, and will be as of immediately prior to the Effective Time, true and correct in all respects and in accordance with the last sentence of this Section 2.3, (ii) the information delivered pursuant to clauses (c) through (j) is, and will be as of immediately prior to the Effective Time based on the good faith estimate of the Company based on its books and records and (iii) the Company has performed, or otherwise complied with, as applicable, its covenants and agreements set forth in Section 2.4(b). The Company will review any comments to the Allocation Schedule provided by HighCape or any of its Representatives and consider in good faith any reasonable comments proposed by HighCape or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, (A) the aggregate number of HighCape Common Stock that each Company Stockholder will have a right to receive pursuant to Section 2.1(b)(viii) will be rounded down to the nearest whole share and (B) in no event shall the Allocation Schedule (or the calculations or determinations therein) breach, as applicable, any applicable Law, the Governing Documents of the Company, the Company Stockholders Agreements, the Company Equity Plan or any other Contract to which the Company is a party or bound (taking into account, for the avoidance of doubt, any actions taken by the Company pursuant to Section 2.4(...
Allocation Schedule. No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to ARYA an allocation schedule (the “Allocation Schedule”) setting forth (a) the number of Company Shares held by each Company Shareholder, the number of Company Shares subject to each Company Equity Award held by each holder thereof, as well as whether each such Company Equity Award will be a Vested Company Equity Award or an Unvested Company Equity Award as of immediately prior to the Effective Time, and, in the case of the Company Options, the exercise price thereof, (b) the number of ARYA Shares that will be subject to each Rollover Option and each Rollover RSU Award, the portion of the Adjusted Transaction Share Consideration to be allocated to each Vested Company RSU Award, and, in the case of each Rollover Option, the exercise price thereof at the Effective Time, as well as the exchange ratio on which such calculations are based (which shall, for the avoidance of doubt, be the same exchange ratio for each calculation pursuant to this clause (b)), (c) the portion of the Adjusted Transaction Share Consideration allocated to each Company Shareholder, and (d) a certification, duly executed by an authorized officer of the Company, that (i) the information delivered pursuant to clauses (a), (b) and (c) is, and will be as of immediately prior to the Effective Time, true and correct in all respects and in accordance with the last sentence of this Section 2.3 and (ii) the Company has performed, or otherwise complied with, as applicable, its covenants and agreements set forth in Section 2.4(e) and Section 5.13(d). The Company will review any comments to the Allocation Schedule provided by ARYA or any of its Representatives and consider in good faith any reasonable comments proposed by ARYA or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, (A) the aggregate number of ARYA Shares that each Company Shareholder will have a right to receive pursuant to Section 2.1(b)(vii) will be rounded down to the nearest whole share, (B) in no event shall the aggregate number of ARYA Shares set forth on the Allocation Schedule that are allocated in respect of Company Shares and Vested Company Equity Awards exceed the Adjusted Transaction Share Consideration, (C) in no event shall the Allocation Schedule (or the calculations or determinations therein) breach, as applicable, any applicable Law, the Governing Documents of the Company, the Compan...
Allocation Schedule. Attached as Annex H hereto is an allocation schedule (the “Allocation Schedule”) setting forth (i) each Holder’s proportionate interest in the Company and its Subsidiaries, taken as a whole (such Holder’s “Proportionate Interest”), based on the Fully Diluted Shares Outstanding (assuming for such purpose that the AT Lender Conversion has occurred) as of the date hereof and (ii) an illustrative calculation of the Exchange Ratio and an illustrative allocation of Common Merger Consideration among the Holders entitled thereto based on the illustrative amounts set forth in such Annex. Not less than two (2) Business Days prior to the Closing, following the delivery of the Closing Statement, the Company shall deliver to LIVK an updated version of the Allocation Schedule, which shall be updated solely to reflect any changes to the Fully Diluted Shares Outstanding (taking into account the occurrence of the AT Lender Conversion) and shall set forth the allocation of the Common Merger Consideration as set forth in the Closing Statement among the Holders entitled thereto. Notwithstanding anything to the contrary in this Agreement, LIVK and, following the Closing, the Surviving Pubco, the Surviving Corporation and its Subsidiaries, shall be entitled to rely on, without any obligation to investigate or verify the accuracy or correctness thereof, the Allocation Schedule (including all determinations therein), and no Holder shall be entitled to any amount in excess of the amounts to be paid to such Holder in accordance with this Agreement and the Allocation Schedule.
Allocation Schedule. The Parent Guarantor, the Borrower and the Lenders shall have agreed on a schedule denoting allocations of proceeds between the Second Amendment Effective Date Warrants and the Loans to be made on the Second Amendment Effective Date.
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Allocation Schedule. 6.16(a) Antitrust Division.....................................................6.5(c) associates.............................................................9.6 Assertion..............................................................6.8(c) Balance Sheet............................................................ 3.5 beneficial ownership...................................................9.6 Board..................................................................3.3(a) Certificate of Merger..................................................1.3 Certificates...........................................................2.2(b) Change in Control..................................................... 6.6(a) Closing................................................................1.2
Allocation Schedule. (a) The Company shall prepare and deliver to Parent a spreadsheet (the “Allocation Schedule”) at least five (5) Business Days prior to the Closing and reasonably satisfactory to Parent, which Allocation Schedule shall be dated as of the Closing Date and shall be in substantially in the form of and set forth all of the information (in addition to the other required data and information specified therein) set forth on Schedule C hereto, as of immediately prior to the Closing.
(b) The Allocation Schedule shall be accompanied by reasonably detailed back-up documentation for the calculations contained therein in support of the calculations of the Total Closing Merger Consideration, the Closing Net Working Capital Amount and the Closing Indebtedness, in each case, as applicable, as set forth in the Allocation Schedule. The Company shall make available to Parent and its Representatives the work papers (subject to the execution of customary work paper access letters, if requested) and other books and records used in preparing the Allocation Schedule and reasonable access to Employees of the Company as Parent may reasonably request in connection with its review of the Allocation Schedule, and will otherwise cooperate in good faith with Parent’s and its Representatives review and shall take into consideration in good faith any comments of Parent on the Allocation Schedule. Notwithstanding the foregoing, in no event will any of Parent’s rights be considered waived, impaired or otherwise limited as a result of Parent not making an objection prior to the Closing or its making an objection that is not fully implemented in a revised Allocation Schedule, as applicable.
