Amendments to the Merger Agreement. (a) The third recital to the Merger Agreement is hereby amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal to the ADS Ratio”. (b) The first sentence of Section 2.1(c)(i) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time (other than the Excluded Shares) (collectively, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stock, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).” (c) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratio”. (d) Section 2.3(e) of the Merger Agreement is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)”. (e) Section 2.4(a) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (whether or not then vested or exercisable) (each, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Option immediately prior to the First Effective Time and (ii) (A) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.” (f) Section 2.4(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each restricted stock unit with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (collectively, the “Company RSUs”) shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.” (g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) above.” (h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”. (i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
Appears in 1 contract
Amendments to the Merger Agreement. (a) The third recital to the Merger Agreement is hereby amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal to the ADS Ratio”.
(b) The first sentence of Section 2.1(c)(i) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time (other than the Excluded Shares) (collectively, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stock, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).”
(c) The third sentence of Section 2.3(a1.03(b)(iii) of the Merger Agreement is hereby amended by replacing adding “80% of” immediately after the words phrase “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratioeach Company Stockholder’s Pro Rata Share of: (1)”.
(db) Section 2.3(e1.04(e) of the Merger Agreement is hereby amended by replacing adding “80% of” immediately after the words phrase “with the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)Agent”.
(ec) Section 2.4(a2.06(a) of the Merger Agreement is hereby deleted in its entirety and replaced with the following text:
(a) Upon the terms and subject to the conditions of this Agreement, the aggregate consideration to be paid to the Company Stockholders shall be: (i) the product of the Per Share Merger Consideration Value times the total number of Company Common Stock (excluding, for the avoidance of doubt, any Designated Exercised Options) held by the Company Stockholders as of the Effective Time (the “Stockholder Merger Consideration”) and (ii) the contingent right to receive the Earn Out Shares following the Closing in accordance with Article III (collectively, the “Total Stockholder Consideration”).”
(d) Section 2.06(b) of the Merger Agreement is hereby amended by adding “80% of” immediately after the phrase “an amount in cash equal to” and restated immediately after the phrase “such Company Stockholder’s Pro Rata Share of”.
(e) Section 2.07(b)(i) of the Merger Agreement is hereby deleted in its entirety as follows: “Each option that represents and replaced with the following text:
(i) each share of Company Common Stock (other than Excluded Shares, Dissenting Shares and Designated Exercised Options) issued and outstanding at the Effective Time will be cancelled and automatically deemed for all purposes to represent the right to acquire receive a portion of the Total Stockholder Consideration, with each Company Stockholder being entitled to receive (i) its Pro Rata Share of 80% of the Closing Cash Payment Amount, if any; (ii) its Pro Rata Share of the Closing Number of Securities; and (iii) during the Earn Out Period, its Earn Out Pro Rata Share of any Earn Out Shares upon the occurrence of each Triggering Event in accordance with Article III, in each case, without interest, upon surrender of stock certificates representing all of such Company Stockholder’s Company Common Stock (each, a “Certificate”) (or affidavits of loss in lieu of the Certificates as provided in Section 2.10(g)) and delivery of the other documents required pursuant to Section 2.10. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company or the Surviving Corporation, and each Certificate relating to the ownership of shares of Company Common Stock (other than Excluded Shares, Dissenting Shares and Designated Exercised Options) shall thereafter represent only the right to receive the applicable portion of the Total Stockholder Consideration.”
(f) Section 2.08(a) – (d) of the Merger Agreement is hereby deleted in its entirety and replaced with the following text:
(a) Effective as of the Effective Time, each Company Option that is outstanding and unexercised immediately prior to the Effective Time, shall be treated as follows:
(i) Each Cashout Company Option outstanding immediately prior to the First Effective Time (whether will automatically, without any action on the part of any Company optionholder or not then vested or exercisable) (eachbeneficiary thereof, convert into and shall represent the right to receive an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) amount in cash equal to the product of (iA) the number of shares of Company Common Stock underlying the applicable Cashout Company Option multiplied by (B) the excess, if any, of (x) the Per Share Merger Consideration Value over (y) the applicable exercise price (each such Company optionholder’s “Cashout Company Option Amount”). The Cashout Company Option Amount shall be payable to the Company optionholder, less required withholdings, on the Company’s first payroll date following the Closing, unless such payment must be delayed in order for such payment to comply with or benefit from any Tax treatment. Each holder of a Cashout Company Option as of immediately prior to the Effective Time shall also be entitled to receive its Earn Out Pro Rata Share of any Earn Out Shares upon the occurrence of each Triggering Event in accordance with Article III.
(ii) Each Company Option other than a Cashout Company Option, whether or not then vested or exercisable, shall be assumed by Parent and shall be converted into a stock option (a “Converted Option”) to acquire shares of Parent Class A Stock. Each such Converted Option as so assumed and converted shall continue to have, and shall be subject to, the same terms and conditions as applied to such the Company Option immediately prior to the First Effective Time and (ii) (A) but taking into account any changes thereto provided for in the case applicable Company Stock Plan, in any award agreement or in such Company Option by reason of Assumed Options in respect this Agreement or the Transactions). As of the Effective Time, each such Converted Option as so assumed and converted shall be exercisable for that number of shares of Parent ADSs, Class A Stock determined by multiplying the Exchange Ratio divided number of shares of the Company Common Stock subject to such Company Option immediately prior to the Effective Time by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case which product shall be rounded down to the nearest whole number of shares, at an a per share exercise price determined by dividing the per share (exercise price of such Company Option immediately prior to the Effective Time by the Exchange Ratio, which quotient shall be rounded up to the nearest whole cent) equal to (x) ; provided, however, that the exercise price per share conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. Each holder of a vested Converted Option as of immediately following the Effective Time shall also be entitled to receive its Earn Out Pro Rata Share of any Earn Out Shares upon the occurrence of each Triggering Event in accordance with Article III.
(iii) As of the Effective Time, all Company Options shall no longer be outstanding and each holder of Converted Options shall cease to have any rights with respect to such Company Options, except as set forth in this Section 2.08(a). The Company shall take all necessary actions to effect the treatment of Company Options pursuant to this Section 2.08(a) in accordance with the Company Stock Plan and the applicable award agreements and to ensure that no Converted Option may be exercised prior to the First effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. Prior to the Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSsTime, the Exchange Ratio divided by Company shall deliver to each Company optionholder a notice, setting forth the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.”
(f) Section 2.4(b) of the Merger Agreement is hereby amended on such Company optionholder’s Company Options and restated describing the treatment of such Company Options in its entirety as follows: “accordance with this Section 2.08.
(b) Each restricted stock unit with respect to shares of Company Common Stock Designated Exercised Option that is outstanding immediately prior to the First Effective Time (collectivelywill automatically, without any action on the “Company RSUs”) part of the holder of the Designated Exercised Option or beneficiary thereof, convert into and shall at represent the First Effective Time be converted into a restricted stock unit of Parent (each, right to receive an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) amount in cash equal to the product Per Share Merger Consideration Value (with the aggregate amount paid to any holder of (i) Designated Exercised Options to be the number “Designated Exercised Option Amount”). The Designated Exercised Option Amount shall be payable to the applicable holder on the Company’s first payroll date following the Closing, unless such payment must be delayed in order for such payment to comply with or benefit from any Tax treatment. Each holder of shares a Designated Exercised Option as of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in shall also be entitled to receive its Earn Out Pro Rata Share of any Earn Out Shares upon the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent occurrence of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result Triggering Event in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) aboveaccordance with Article III.”
(h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”.
(i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
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Amendments to the Merger Agreement. (a) The third recital Effective as of the execution hereof, the Company, Parent, and the Excess Cash Stockholders agree that the following shall be added at the end of Section 2.2 of the Merger Agreement: “Notwithstanding anything to the contrary in the Merger Agreement is hereby amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal Agreement, any Cash Merger Consideration payable to the ADS Ratio”.
(bExcess Cash Stockholders, in their capacity as stockholders of the Company with respect to their Cash Electing Shares, pursuant to Section 2.3(a) The first sentence of and Section 2.1(c)(i) 2.6 of the Merger Agreement is hereby amended and restated in its entirety shall be payable as follows: :
(i) on the date that is the 179th day following the Closing (the “Each share of Company Common Stock issued and outstanding immediately prior Initial Interim Payment Date”), Parent shall pay to the First Effective Time Excess Cash Stockholders an aggregate amount of cash equal to $5 million (other than allocated among the Excluded SharesExcess Cash Stockholders in accordance with Exhibit H) (the “Interim Payment Amount”); provided, however, that if Parent is prohibited from paying all or a portion of the Interim Payment Amount on the Initial Interim Payment Date because the aggregate amount of all fees and expenses incurred by Parent, the Company and their respective Subsidiaries in connection with the Transactions (the “Fees and Expenses”), together with the Cash Merger Consideration actually paid at Closing (the “Closing Cash”) and the Interim Payment Amount (collectively, the “SharesTransaction Expenses”) shall be converted into and become one (1) share of Initial Surviving Company Stock, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement would exceed $40.0 million (the “Merger ConsiderationExpense Cap”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional then on the Initial Interim Payment Date, Parent ADSs shall pay to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).”
(c) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “Excess Cash Stockholders an amount equal to the number difference of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to (x) $5.0 million and (y) the product amount resulting from the difference of (A) the number Expense Cap and (B) the sum of the Fees and Expenses and the Closing Cash; provided further, that Parent ADSs issuable pursuant shall pay to Section 2.1(cthe Excess Cash Stockholders the balance, if any, of the Interim Payment Amount as soon as practical following the Initial Interim Payment Date if it determines in good faith that it is permitted to do so in compliance with the Expense Cap; and
(ii) on the earlier of (x) the date on which Parent completes a primary offering of equity securities that generates gross proceeds to Parent equal to or in excess of $15,000,000 and (y) the date that is four years and ninety-one days following the Closing (the “Final Payment Date”), Parent shall pay to the Excess Cash Stockholders an amount of cash equal to the lesser of (A) the difference of the Cash Merger Consideration owed to the Excess Cash Stockholders with respect to their Cash Electing Shares and the Interim Payment Amount (allocated among the Excess Cash Stockholders in accordance with Exhibit H) and (B) the ADS Ratio”.
(d) Section 2.3(e) amount resulting from the difference of the Merger Agreement is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)”.
(e) Section 2.4(a) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (whether or not then vested or exercisable) (each, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Option immediately prior to the First Effective Time and (ii) (A) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by Expense Cap and (y) the Transaction Expenses (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.”
(f) Section 2.4(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each restricted stock unit with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (collectively, the “Company RSUsFinal Payment Amount”) shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure in no event shall the Excess Cash Stockholders be paid in excess of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Cash Merger Consideration (or that the consideration payable Excess Cash Stockholders would have otherwise been entitled to holders of Options and Company RSUs receive pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B2.3(a) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) above.”
(h) Section 5.15(a) 2.6 of the Merger Agreement is hereby amended by replacing with respect to their Cash Electing Shares (the words “that each Excess Cash Stockholders Cash Consideration Amount”). If the Final Payment Amount does not equal the Excess Cash Stockholders Cash Consideration Amount, Parent ADS under shall issue the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for Excess Cash Stockholders a number of shares of Parent Ordinary Shares Common Stock equal to the ADS Ratio quotient of (X) the difference of (I) the Excess Cash Stockholders Cash Consideration Amount and ranking pari passu”.
(iII) Section 8.13 the sum of the Final Payment Amount and the Interim Payment Amount divided by (Y) the 10-day volume weighted average trading price of Parent Common Stock on NASDAQ (or such other stock exchange that Parent Common Stock is then traded) prior to the Final Payment Date, and following such issuance of Parent Common Stock, the Excess Cash Stockholders shall be deemed to have received the Cash Merger Agreement is hereby amended by amending Consideration to which they were entitled in full.” Effective as of the execution hereof, the Company, Parent, and restating the definition of “Exchange Ratio” Excess Cash Stockholders agree that the information set forth in its entirety Annex A hereto shall be added as followsExhibit H to the Merger Agreement:
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Amendments to the Merger Agreement. (a) The third recital to Section 2.01(c) of the Merger Agreement (Conversion of Company Shares) is hereby amended by deleting the entire first sentence thereof and replacing it with the words “following: Subject to Section 2.01(b), each Parent ADS representing one Parent Ordinary Share” issued and outstanding Company Share automatically shall be converted into and shall thereafter represent the right to receive, in accordance with “each Parent ADS representing Section 2.02, a number of Parent Ordinary validly issued, fully paid and non-assessable Bermuda Holdco Shares equal to the ADS RatioStock Conversion Number (the “Stock Consideration” and, together with any cash paid in lieu of fractional shares in accordance with Section 2.02(d), the “Merger Consideration”).
(b) The first sentence of Section 2.1(c)(i2.02(b) of the Merger Agreement (Payment of Merger Consideration) is hereby amended by deleting the entire second sentence thereof and replacing it with the following: Upon the completion of such applicable procedures by a holder and the surrender of such holder’s Certificates or Book-Entry Shares, the Exchange Agent shall deliver to such holder (A) a certificate or book-entry representing that number of whole Bermuda Holdco Shares (rounded down to the nearest whole Bermuda Holdco Share) that such Stockholder has the right to receive in respect of the Company Shares represented thereby and (B) cash in lieu of fractional shares that such Stockholder has the right to receive pursuant to Section 2.02(d), and any surrendered Certificates shall forthwith be canceled.
(c) Section 2.03(a) of the Merger Agreement (Equity Awards) is hereby amended and restated in its entirety to read as follows: At the Effective Time, without any action on the part of any Stockholder, each outstanding stock option granted under the Company Stock Plan or otherwise (a “Each share Company Option”), shall automatically (i) vest and become free of any forfeiture conditions if not then vested and free of forfeiture conditions and (ii) constitute a fully vested option (a “Converted Option”) to acquire (on the same terms and conditions (other than vesting and performance conditions) as were applicable to such Company Common Option pursuant to the relevant Company Stock Plan under which it was issued and outstanding immediately the agreement evidencing the grant thereof prior to the First Effective Time Time) that number (other than rounded down to the Excluded Sharesnearest whole number) (collectively, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stock, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for Bermuda Holdco Shares determined by multiplying (A) the number of Parent ADSs equal Company Shares subject to (1) such Company Option immediately prior to the Exchange Ratio divided Effective Time by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (the Stock Conversion Number. The exercise price per Bermuda Holdco Share subject to any applicable withholding Tax).”
such Converted Option shall be an amount (crounded up to the nearest cent) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant exercise price per Company Share subject to Section 2.1(c) and such Company Option immediately prior to the Effective Time divided by (B) the ADS Ratio”Stock Conversion Number. Notwithstanding the foregoing, the assumption and conversion of Company Options under this Section 2.03 shall be implemented in such a manner so as not to constitute (i) a “modification,” “extension” or “renewal” (within the meaning of Section 424 of the Code and the regulations thereunder) of the terms of a Company Option that is an “incentive stock option” (as defined under Section 422 of the Code) or (ii) a “modification” or “extension” of the terms of a Company Option (within the meaning of Section 409A of the Code and the regulations thereunder).
(d) Section 2.3(e) 2.05 of the Merger Agreement (Dissenting Shares) is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)”deleted in its entirety.
(e) Section 2.4(a8.11(a) of the Merger Agreement (Definitions) is hereby amended as set forth below:
i. The definition of “Stock Conversion Number” is hereby amended and restated in its entirety as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (whether or not then vested or exercisable) (each, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Option immediately prior to the First Effective Time and (ii) (A) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.”
(f) Section 2.4(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each restricted stock unit with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (collectively, the “Company RSUs”) shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) above.”
(h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”.
(i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety read as follows:
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Amendments to the Merger Agreement. (a) The third recital to the Merger Agreement is hereby amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal to the ADS Ratio”.
(b) The first sentence of Section 2.1(c)(i2.01. Section 4.01(f) of the Merger Agreement is hereby amended and restated superseded in all respects by the provisions of this First Amendment. As amended and restated, Section 4.01(f) reads in its entirety entirety:
(i) At the Merger Effective Time, except as follows: “Each share otherwise agreed by Parent and the holder of Company Stock-Based Awards (as defined below) with respect to such holder’s Company Stock-Based Awards, each right of any kind, contingent or accrued, to receive Company Common Shares or benefits measured in whole or in part by the value of a number of Company Common Stock issued Shares granted under the Incentive Plans or otherwise (including performance shares, restricted stock, restricted stock units, phantom units, deferred stock units and outstanding immediately prior to the First Effective Time (dividend equivalents) other than the Excluded Shares) Company Stock Options and Company Restricted Shares (collectivelyeach, the other than Company Restricted Shares and Company Stock Options, a “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stock-Based Award”), and each such share of Initial Surviving except for any Company Stock shall immediately thereafter be automatically exchanged for (A) Stock-Based Award that has been granted under the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement Accredited Home Lenders Holding Co. Deferred Compensation Plan (the “Merger ConsiderationDeferred Compensation Plan”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to whether vested or unvested, which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).”
(c) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratio”.
(d) Section 2.3(e) of the Merger Agreement is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)”.
(e) Section 2.4(a) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Merger Effective Time (whether Time, shall become fully vested and free of any forfeiture or not then vested holding restrictions or exercisable) (eachperformance or other restrictions, shall cease to represent a right or award with respect to Company Common Shares, and shall entitle the holder thereof to receive, at the Merger Effective Time, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) amount in cash equal to the product Merger Consideration in respect of (i) the number of shares of each Company Common Stock subject Share underlying a particular Company Stock-Based Award less such amounts as are required to such Option immediately prior be withheld or deducted under the Code or any provision of U.S. state or local tax law with respect to the First Effective Time and making of such payment.
(ii) (A) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.”
(f) Section 2.4(b) of At the Merger Agreement is hereby amended Effective Time, each Company Stock-Based Award, whether vested or unvested, which has been granted under the Deferred Compensation Plan and restated in its entirety as follows: “Each restricted stock unit with respect to shares of Company Common Stock that which is outstanding immediately prior to the First Merger Effective Time (collectivelyTime, the “Company RSUs”) whether in trust or not, shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, treated as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) follows: (A) in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any doublesuch Company Stock-trigger vesting) and other provisions of such Assumed RSU Based Award shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of be exchanged at the Merger Agreement is hereby amended and restated Effective Time for an amount in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares cash equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent respect of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSsCommon Share underlying a particular Company Stock-Based Award, (B) impose any material economic or other cost on Parent or its shareholders or such cash amounts will be deposited in the Company or its stockholders, trust related to the Deferred Compensation Plan and (C) adversely affect and the Intended Tax Treatment or otherwise result vesting and distribution of such cash amounts and any subsequent earnings thereon will be in any material adverse Tax impact to accordance with the stockholders terms of such Deferred Compensation Plan and upon which the related Company or Stock-Based Award was granted and the parties hereto, (D) prevent or materially delay or impair elections of participants in the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) aboveDeferred Compensation Plan.”
(h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”.
(i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
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Samples: Agreement and Plan of Merger (Accredited Home Lenders Holding Co)
