Company Ownership Company will own its respective right, title, and interest, including Intellectual Property Rights, in and to the Company Data. Company hereby grants BNYM a limited, nonexclusive, nontransferable license to access and use the Company Data, and consents to BNYM’s permitting access to, transferring and transmitting Company Data, all as appropriate to Company’s use of the Licensed Rights or as contemplated by the Documentation.
Company RSUs At or immediately prior to the Effective Time, each award of restricted stock units under any Company Plan (a “Company RSU”) that is outstanding immediately prior to the Effective Time, whether or not vested, shall be canceled and Parent shall use reasonable best efforts to cause Banco Santander, S.A. to replace such cancelled Company RSU with a restricted stock unit award providing the holder of such cancelled Company RSU a right to receive, on the date that such Company RSU otherwise would have been settled, a number of ADRs equal to the quotient of (i) the product of (x) the number of Shares underlying the applicable Company RSU multiplied by (y) the Offer Price, divided by (ii) the price per ADR set forth on Schedule 3.06. Such replacement award shall otherwise be subject to the same terms (including vesting requirements and, as applicable, performance goals) as the underlying Company RSU; provided, however, that service with the Surviving Company and its Affiliates shall be treated as continuing service for vesting and all other purposes, and with respect to Company RSUs granted on June 4, 2021 to any member of the Board whose service is involuntarily terminated in connection with a downsizing of the Board in connection with the Merger, to the extent not yet vested as of the termination date, Company RSUs that vest based on the director’s continued service shall be deemed fully vested as of the director’s termination of service as of the termination date. Parent shall use reasonable best efforts to cause Banco Santander, S.A., to, at or prior to the Effective Time, register on an appropriate registration statement the shares of capital stock of Banco Santander, S.A. evidenced by the ADRs in respect of the replacement awards. Parent shall use reasonable best efforts to cause Banco Santander, S.A. to take all corporate actions necessary to authorize the issuance of the ADRs, and cause the ADRs, when issued and delivered, to be duly authorized, validly issued, fully paid, and nonassessable, free and clear of any liens or encumbrances, and issued in compliance with Applicable Law. If such ADRs are not able to be issued, or for any other reason Banco Santander does not issue such ADRs, under any replacement award in accordance with this Section 3.06, then Parent shall pay to the holder of such replacement award that vests (it being understood that the same vesting conditions applicable to the Company RSU and to replacement awards shall apply for this purpose) a cash payment, on the date that such Company RSU otherwise would have been settled, with a value (per ADR subject to the replacement award) equal to the closing price of an ADR on the New York Stock Exchange on the date of settlement; provided, however, that if the holder of such Company RSU is subject to a hold requirement under the Banco Santander S.A.’s Management Board Compensation Policy and Identified Staff Plan (the “CRD Policy”), then, subject to Applicable Law and unless the holder of the Company RSU and Parent otherwise agree, Parent shall hold back the net after tax amount of such payment (if necessary for purposes of compliance with Section 409A of the Code in escrow for the benefit of the holder) to be paid to the holder upon the expiration of the hold period, plus an adjustment through the date of payment. The adjustment rate shall be based on the United States Bureau of Labor Statistics Consumer Price Index for All Urban Consumers for “all items” in effect on the date of settlement, plus 3% (the “Interest Rate”). Merger Consideration (net of any tax incurred by the holder of Shares in respect of such Merger Consideration) received pursuant to Section 3.03 in settlement of Shares that are, as of immediately prior to such settlement, subject to the CRD Policy (whether such Shares were received in settlement of Company RSUs or otherwise) shall remain subject to such policy, and, to the extent permitted by Applicable Law and unless the holder of the Shares and Parent otherwise agree, Parent shall either cause Banco Santander, S.A. to issue a number of ADRs equal to the after tax Merger Consideration amount divided by the closing price of an ADR on the New York Stock Exchange on the final trading date that concludes prior to the Effective Time (which ADRs shall be subject to the CRD Policy), or hold back the net after tax amount of such Merger Consideration to be paid to the holder upon the expiration of the hold period, plus an adjustment for inflation at the Interest Rate through the date of payment. Prior to the Effective Time, the Compensation Committee and/or the Board of Directors shall adopt any resolutions and take any actions that are necessary or appropriate to effectuate the provisions of this Section 3.06.
Company Common Stock “Company Common Stock” shall mean the Common Stock, par value $0.001 per share, of the Company.
Company Warrants (i) All Company Warrants that pursuant to their terms do not provide for assumption of such Company Warrants in connection with the Merger shall be cancelled at the Closing. Prior to the Effective Time, the Company shall take all actions necessary to effect the transactions anticipated by this Section 2.6(d) under all Company Warrant agreements, including delivering all notices required thereby. Within five (5) Business Days following the Effective Date, the Company shall notify the holders of such Company Warrants, which such notice shall be in compliance with the terms of such Company Warrants and shall specify the vested and unvested portions thereof, that such Company Warrants will be cancelled at the Closing. Materials to be submitted to the holders of Company Warrants in connection with the notice required under this Section 2.6(d) shall be subject to review and reasonable approval by Parent.
(ii) All Company Warrants that pursuant to their terms provide for assumption of such warrant in connection with the Merger (the “Assumed Warrants”) shall be assumed by Parent and converted into a warrant to purchase Parent Common Stock. Each Assumed Company Warrant will continue to have, and be subject to, the same terms and conditions (including with respect to vesting), except that (A) each Assumed Company Warrant shall be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Warrant immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share) and (B) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Assumed Company Warrant shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Warrant was exercisable immediately prior to the Effective Time by the Exchange Ratio (rounded up to the nearest whole cent); provided, however, that the terms of each of the Company Warrants will provide (x) for an equitable adjustment in the event that any Escrow Shares are delivered by the Escrow Agent to a Parent Indemnified Party so that the holder of such Company Warrant will bear a pro rata portion (relative to the Total Outstanding Shares) of the aggregate indemnifiable Damages giving rise to such delivery of Escrow Shares and (y) upon exercise of such Company Warrant, a portion of the Company Stock issued upon such exercise (equal to the portion of Escrow Shares then held in the Escrow Account relative to the number of shares of Parent Common Stock previously delivered to the Company Stockholders pursuant to this Agreement) will be retained by Parent in escrow and transferred to either Parent or the holder of such Company Warrant, as applicable, at the same time and in the same relative proportion as the Escrow Shares are transferred out of the Escrow Account.
Company SEC Documents The Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) or furnished with the SEC all reports, schedules, forms, statements, and other documents (including exhibits and other information incorporated therein) that have been filed or were required to be filed or furnished by it under the Exchange Act or the Securities Act since December 31, 2020 (all such documents collectively, the “Company SEC Documents”). The Company SEC Documents, including any audited or unaudited financial statements and any notes thereto or schedules included therein (the “Company Financial Statements”), at the time filed or furnished (except to the extent corrected by a subsequently filed Company SEC Document filed prior to the date of this Agreement) (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, (iii) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, (iv) were prepared in conformity with generally accepted accounting principles for financial reporting in the United States applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) and (v) fairly present (subject in the case of unaudited statements to normal, recurring and year-end audit adjustments), in all material respects, the consolidated financial position of the business of the Company as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended. KPMG LLP is an independent registered public accounting firm with respect to the Company and has not resigned or been dismissed as independent registered public accountants of the Company as a result of or in connection with any disagreement with the Company on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures.
Company Options (a) At the Effective Time, each Company Option, whether vested or unvested, will be assumed by NetRatings as contemplated by this Section 5.7. Section 5.7 of the Company Disclosure Schedule hereto sets forth a true and complete list as of the date of this Agreement of all holders of outstanding Company Options, including the number of shares of Company Common Stock subject to each such option, the exercise or vesting schedule, the exercise price per share and the term of each such Company Option. On the Closing Date, the Company shall deliver to NetRatings an updated Section 5.7 of the Company Disclosure Schedule hereto current as of such date. Each such Company Option so assumed by NetRatings under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the Company Option Plan and any other document governing such Company Option immediately prior to the Effective Time, except that (i) such Company Option will be exercisable for that number of whole shares of NetRatings Common Stock equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time multiplied by the Common Exchange Ratio and rounded down to the nearest whole number of shares of NetRatings Common Stock, (ii) the per share exercise price for the shares of NetRatings Common Stock issuable upon exercise of such assumed option will be equal to the quotient determined by dividing the exercise price per share at which such Company Option was exercisable immediately prior to the Effective Time by the Common Exchange Ratio, rounded up to the nearest whole tenth of a cent, and (iii) the term, vesting schedule and other provisions of such Company Option shall remain unchanged, provided that all outstanding Options shall be exercisable as of the Effective Time to the extent vested as of the Effective Time and will continue to become exercisable as they vest after the Effective Time. Consistent with the terms of the Company Option Plan and the documents governing the outstanding Company Options, the Merger will not result in the termination of any of the outstanding Company Options or, except as contemplated by the preceding sentence, the acceleration of the exercisability or vesting of such Company Options upon NetRatings' assumption of the Company Options in the Merger. Within 20 business days after the Effective Time, NetRatings will issue to each person who, immediately prior to the Effective Time, was a holder of an outstanding Company Option a document in form and substance reasonably satisfactory to ACN evidencing the foregoing assumption of such Company Option by NetRatings.
(b) As soon as practicable after the Effective Time, but in any event within 30 days thereafter, NetRatings shall file a registration statement on Form S-8 (or any successor or other appropriate forms), with respect to the shares of NetRatings Common Stock subject to the Company Options assumed by NetRatings and shall use its best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses in connection therewith) for so long as the assumed Company Options remain outstanding.
Company Option “Company Option” shall mean an option to acquire shares of Company Common Stock from the Company, whether vested or unvested.
Company SEC Reports (a) The Company has filed with the SEC all forms, reports, schedules, statements and other documents required to be filed by it since January 1, 1996 under the Securities Act or the Exchange Act (such documents, as supplemented or amended since the time of filing, collectively, the "Company SEC Reports"). As of their respective dates, the Company SEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, at the time filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (a) complied, in all material respects, with all applicable requirements of the Securities Act and the Exchange Act, as the case may be and (b) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The audited consolidated financial statements and unaudited consolidated interim financial statements (the "Financial Statements") included or incorporated by reference in the Company SEC Reports (including any related notes and schedules) fairly present, in all material respects, the financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the results of their operations and their cash flows for the periods set forth therein, in each case in accordance with past practices and GAAP consistently applied during the periods involved (except as otherwise disclosed in the notes thereto and subject, where appropriate, to normal year-end adjustments that would not be material in amount or effect).
(b) The Company has heretofore made available or promptly will make available to MergerSub a complete and correct copy of any amendments or modifications to any Company SEC Reports filed prior to the date hereof which are required to be filed with the SEC but have not yet been filed with the SEC.
(c) The Company will file with the SEC and promptly will make available to MergerSub true and complete copies of each form, registration statement, report, schedule, proxy or information statement and other documents (including exhibits thereto) required to be filed with the SEC under the Securities Act or the Exchange Act.
Merger Sub Common Stock At the Effective Time, each share of common stock, par value $0.01 per share, of Merger Sub (“Merger Sub Common Stock”) issued and outstanding immediately prior to the Effective Time shall be automatically converted into one fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.