Common use of Consideration for the Merger Clause in Contracts

Consideration for the Merger. (a) Notwithstanding any other provision of this Agreement, the aggregate amount (including any amounts withheld pursuant to Section 1.14) Parent shall pay or cause to be paid to the holders of shares of Company Common Stock that are not subject to restriction or a right of repurchase by the Company (the “Company Stockholders”) and holders of Company Options, Company Restricted Stock and all other equity interests of the Company (collectively, together with the Company Stockholders, the “Company Holders”) in exchange for the acquisition by Parent of all shares of Company Common Stock and the cancellation or termination, as applicable, of Company Options and Company Restricted Stock and other similar rights to acquire Company Common Stock or other equity securities of the Company (whether vested, unvested, earned, unearned or contingent) (the “Purchase Price”) shall be an amount in cash equal to: (i) Two Billion One Hundred Sixty Million Dollars ($2,160,000,000) (the “Base Consideration”); (ii) minus the Indebtedness Adjustment; (iii) plus the Cash Credit Amount; (iv) minus the aggregate amount of the Change of Control and Severance Payments; and (v) minus the aggregate amount of Company Transaction Expenses unpaid as of the close of business on the day immediately prior to the Closing Date; (vi) minus the amount, if any, by which (A) Seventy Five Million Dollars ($75,000,000) exceeds (B) thirty-seven and a half percent (37.5%) of the aggregate amount of all prepayment premiums, penalties, breakage costs or similar obligations payable in connection with (x) the redemption of the Redeemed Notes pursuant to Section 5.11(b) and (y) the payment of any Indebtedness incurred to prepay, redeem, repurchase or otherwise retire or extinguish such Redeemed Notes (unless, in case of such Indebtedness, Parent reasonably determines that it will not be entitled to deduct the full amount of such prepayment premiums, penalties, breakage costs or similar obligations in the tax year in which such payment is made) (the “Tax Benefit Adjustment”); provided that if any Redeemed Notes are prepaid, redeemed, repurchased or otherwise retired or extinguished prior to the Effective Time, whether as permitted pursuant to Section 4.2 or otherwise, then the amount to be used in clause (B)(x) of the calculation of the Tax Benefit Adjustment with respect to such Redeemed Notes shall be zero ($0); (vii) minus, the aggregate amount of Indebtedness repaid by the Company on or after the date hereof, excluding any Indebtedness that is concurrently replaced by Indebtedness of an equal or greater amount; and (viii) minus an amount equal to forty percent (40%) of the aggregate amount of any payments or benefits paid or that may become payable in connection with this Agreement, the Merger, the transactions contemplated hereby or any Company Employee Plan (directly or indirectly, including payments or benefits contingent upon the occurrence of another event) that would not be deductible by reason of Section 280G of the Code. (b) The Purchase Price shall be comprised of: (i) an amount equal to Twenty Five Million Dollars ($25,000,000) in cash (the “Escrow Amount”), which shall be deposited with the Escrow Agent pursuant to Section 8.1; (ii) an amount equal to One Million Dollars ($1,000,000) in cash (the “Stockholders’ Agent Reimbursement Escrow Amount”), which shall be deposited with the Escrow Agent to be used by the Stockholders’ Agent with respect to Agent Expenses; and (iii) an amount equal to the Purchase Price minus (x) the Escrow Amount and (y) the Stockholders’ Agent Reimbursement Escrow Amount, which shall be payable in cash to the Company Holders in accordance with Sections 1.8, 1.9 and 1.10 and shall be subject to adjustment pursuant to ARTICLE VIII. (c) Prior to the Closing, in addition to such other actions as may be provided for herein the Company shall deliver to Parent, at least five (5) Business Days prior to the Closing, a closing statement (the “Closing Statement”) setting forth the Company’s calculation of the Purchase Price, which shall be determined in accordance with Section 1.7(a) and shall set forth, as of the anticipated Closing Date (i) the Indebtedness Adjustment, (ii) the aggregate amount of the Change of Control and Severance Payments, (iii) the Company Transaction Expenses, the Persons owed such amounts and, to the extent available to the Company, the bank account and wire transfer information for such Person and (iv) the Tax Benefit Adjustment, each as a separate line item. (d) At the Closing, in addition to such other actions as may be provided for herein: (i) The Company shall deliver a certification by an officer of the Company that the Closing Statement correctly reflects the calculations contained therein as required to be made pursuant to this Agreement; (ii) Parent shall make the payment to the Paying Agent described in Section 1.10(b); (iii) Parent shall deposit the Escrow Amount with the Escrow Agent pursuant to Section 8.1; (iv) Parent shall deposit the Stockholders’ Agent Reimbursement Escrow Amount with the Escrow Agent; and (v) Parent shall pay all Company Transaction Expenses that remain unpaid as of the close of business on the day immediately prior to the Closing Date to such accounts as are designated by the Company in accordance with Section 1.7(c).

Consideration for the Merger. (a) Notwithstanding any other provision of this Agreement, the The aggregate amount Parent shall pay or cause to be paid (including any amounts withheld pursuant to Section 1.141.15) Parent shall pay or cause to be paid to the (i) holders of shares of Company Common Capital Stock that are not subject to restriction or a right of repurchase by the Company (the “Company Stockholders”) and (ii) holders of Vested Company Options, Company Restricted Stock Options and all other equity interests of the Company (collectively, together with the Company Stockholders, the “Company Holders” and each, a “Company Holder”) in exchange for the acquisition by Parent of all shares of Company Common Stock and Capital Stock, the cancellation cancellation, termination, or terminationconversion, as applicable, of Vested Company Options and Company Restricted Stock and other similar rights to acquire Company Common Capital Stock or other equity securities of the Company (whether vested, unvested, earned, unearned or contingent) (the “Purchase PriceMerger Consideration”) shall be an amount in cash equal to: (i) Two Billion One to Three Hundred Sixty and Fifty Million Dollars ($2,160,000,000) (the “Base Consideration”350,000,000); (ii) minus the Indebtedness Adjustment; (iii) plus the Cash Credit Amount; (iv) minus the aggregate amount of the Change of Control and Severance Payments; and (v) minus the aggregate amount of Company Transaction Expenses unpaid , as of the close of business on the day immediately prior to the Closing Date; (vi) minus the amount, if any, by which (A) Seventy Five Million Dollars ($75,000,000) exceeds (B) thirty-seven and a half percent (37.5%) of the aggregate amount of all prepayment premiums, penalties, breakage costs or similar obligations payable in connection with (x) the redemption of the Redeemed Notes adjusted pursuant to Section 5.11(b1.7(b) and (y) the payment of any Indebtedness incurred to prepay, redeem, repurchase or otherwise retire or extinguish such Redeemed Notes (unless, in case of such Indebtedness, Parent reasonably determines that it will not be entitled to deduct the full amount of such prepayment premiums, penalties, breakage costs or similar obligations in the tax year in which such payment is made) (the “Tax Benefit Adjustment”); provided that if any Redeemed Notes are prepaid, redeemed, repurchased or otherwise retired or extinguished prior to the Effective Time, whether as permitted pursuant to Section 4.2 or otherwise, then the amount to be used in clause (B)(x) of the calculation of the Tax Benefit Adjustment with respect to such Redeemed Notes below. The Merger Consideration shall be zero ($0); (vii) minus, the aggregate amount of Indebtedness repaid by the Company on or after the date hereof, excluding any Indebtedness that is concurrently replaced by Indebtedness of an equal or greater amount; and (viii) minus an amount equal to forty percent (40%) of the aggregate amount of any payments or benefits paid or that may become payable in connection with this Agreement, the Merger, the transactions contemplated hereby or any Company Employee Plan (directly or indirectly, including payments or benefits contingent upon the occurrence of another event) that would not be deductible by reason of Section 280G of the Code. (b) The Purchase Price shall be comprised consist of: (i) an amount (the “Initial Amount”), which shall be deposited in cash with the Paying Agent at Closing in accordance with Section 1.11(b), equal to Twenty Five the remainder of (x) the Merger Consideration, minus (y) the sum of the (I) Escrow Amount, and (II) the Expense Amount; (ii) an amount equal to Forty Three Million Seven Hundred Fifty Thousand Dollars ($25,000,00043,750,000) in cash (the “Escrow Amount”), which shall be deposited in cash with the Escrow Agent at Closing pursuant to Section 8.18.1 and; (iiiii) an amount equal to One Million Two Hundred Fifty Thousand Dollars ($1,000,000250,000) in cash (the “Stockholders’ Agent Reimbursement Escrow Expense Amount”), which shall be deposited in cash with the Escrow Agent to be used by the Stockholders’ Agent with respect to Agent Expenses; and (iii) an amount equal to the Purchase Price minus (x) the Escrow Amount and (y) the Stockholders’ Agent Reimbursement Escrow Amount, which shall be payable in cash to the Company Holders in accordance with Sections 1.8, 1.9 and 1.10 and shall be subject to adjustment at Closing pursuant to ARTICLE VIIISection 8.5(c). (cb) Prior The Merger Consideration is subject to the Closing, in addition to such other actions as may be provided for herein the Company shall deliver to Parent, at least five (5) Business Days prior to the Closing, a closing statement (the “Closing Statement”) setting forth the Company’s calculation of the Purchase Price, which shall be determined in accordance with Section 1.7(a) and shall set forth, as of the anticipated Closing Date (i) the Indebtedness Adjustment, (ii) the aggregate amount of the Change of Control and Severance Payments, (iii) the Company Transaction Expenses, the Persons owed such amounts and, to the extent available to the Company, the bank account and wire transfer information for such Person and (iv) the Tax Benefit Adjustment, each as a separate line item. (d) At the Closing, in addition to such other actions as may be provided for hereinfollowing adjustments: (i) The Company Merger Consideration shall deliver a certification be increased by an officer the aggregate amount of the Company that the any Estimated Closing Statement correctly reflects the calculations contained therein as required to be made pursuant to this AgreementCash; (ii) Parent The Merger Consideration shall make be reduced by the payment to the Paying Agent described in Section 1.10(b)aggregate amount of any Closing Indebtedness; (iii) Parent The Merger Consideration shall deposit be reduced by the Escrow Amount with aggregate amount of any unpaid Company Fees and Expenses as of the Escrow Agent pursuant to Section 8.1;Effective Time; and (iv) Parent The Merger Consideration shall deposit the Stockholders’ Agent Reimbursement Escrow Amount with the Escrow Agent; and (v) Parent shall pay all Company Transaction Expenses that remain unpaid as of the close of business on the day immediately prior to the Closing Date to such accounts as are designated be reduced by the Company in accordance with Section 1.7(c)amount of any Closing Negative Adjustment or increased by the amount of any Closing Positive Adjustment.

Consideration for the Merger. (a) Notwithstanding any other provision of this Agreement, the maximum aggregate amount (including any amounts withheld pursuant to Section 1.142.16) Parent shall pay or cause to be paid to the holders Effective Time Holders (without limiting Parent’s obligations to make payments under the Series B Additional Purchase Price Agreement or to other Persons as expressly provided herein, including payment of shares of Company Common Stock that are not subject to restriction or a right of repurchase by the Company (the “Company Stockholders”) Exchange Agent’s fees and holders of Company Optionsexpenses, Company Restricted Stock and all other equity interests as provided in Section 2.12(a), of the Company Fees and Expenses, as provided in Section 2.12(i), of the HSR Act filing fees (collectivelyand similar fees), together as provided in Section 6.4(b), to the Shareholders’ Agent with respect to the Company StockholdersShareholders’ Agent Reserve Amount, the “Company Holders”as provided in Section 9.5(c), with respect to certain Tax matters under Section 6.5 and with respect to Indemnity Claims under Section 9.3(a)) in exchange for the acquisition by Parent of all shares of Company Common Stock and Capital Stock, Company RSUs, the cancellation or termination, as applicable, of Company Options and Company Restricted Stock Warrants, and other similar rights to acquire Company Common Capital Stock or other equity securities of the Company (whether vested, unvested, earned, unearned or contingent) (shall not exceed the “Purchase Price”) shall be an amount in cash equal to: sum of (i) Two Billion One Hundred Sixty Million Dollars the Initial Amount ($2,160,000,000) (subject to adjustment pursuant to Section 2.8), plus the “Base Consideration”); Aggregate Series B Preference Amount, plus the Aggregate Series A Preference Amount, (ii) minus the Indebtedness Adjustment; amounts specified in Sections 2.11(a)(i) — (vii) (up to $600,000,000) and (iii) plus the Cash Credit Amount; (iv) minus the aggregate amount of the Change of Control and Severance Payments; and PRV Payment (v) minus the aggregate amount of Company Transaction Expenses unpaid as of the close of business on the day immediately prior up to the Closing Date; (vi) minus the amount, if any, by which (A) Seventy Five Million Dollars ($75,000,000) exceeds (B) thirty-seven and a half percent (37.5%) of the aggregate amount of all prepayment premiums, penalties, breakage costs or similar obligations payable in connection with (x) the redemption of the Redeemed Notes pursuant to Section 5.11(b) and (y) the payment of any Indebtedness incurred to prepay, redeem, repurchase or otherwise retire or extinguish such Redeemed Notes (unless, in case of such Indebtedness, Parent reasonably determines that it will not be entitled to deduct the full amount of such prepayment premiums, penalties, breakage costs or similar obligations in the tax year in which such payment is made) (the “Tax Benefit Adjustment”100,000,000); provided that if any Redeemed Notes are prepaid, redeemed, repurchased or otherwise retired or extinguished prior to the Effective Time, whether as permitted pursuant to Section 4.2 or otherwise, then the amount to be used in clause (B)(x) of the calculation of the Tax Benefit Adjustment with respect to such Redeemed Notes shall be zero ($0); (vii) minus, the aggregate amount of Indebtedness repaid by the Company on or after the date hereof, excluding any Indebtedness that is concurrently replaced by Indebtedness of an equal or greater amount; and (viii) minus an amount equal to forty percent (40%) of the aggregate amount of any payments or benefits paid or that may become payable in connection with this Agreement, the Merger, the transactions contemplated hereby or any Company Employee Plan (directly or indirectly, including payments or benefits contingent upon the occurrence of another event) that would not be deductible by reason of Section 280G of the Code. (b) The Purchase Price Except as otherwise required by Legal Requirements, for all federal, state, local and foreign income Tax purposes, all payments described in Section 2.7(a) shall be comprised of: (i) an amount equal to Twenty Five Million Dollars ($25,000,000) treated as payments of purchase price in cash (a transaction in which gain or loss is recognized under Section 1001 of the “Escrow Amount”)Code, which shall be deposited with the Escrow Agent pursuant to Section 8.1; (ii) an amount equal to One Million Dollars ($1,000,000) in cash (the “Stockholders’ Agent Reimbursement Escrow Amount”), which shall be deposited with the Escrow Agent to be used by the Stockholders’ Agent other than consideration with respect to Agent Expenses; and (iii) an amount equal Company RSUs and Company Plan Options, in each case, that are in respect of services performed for the Company. The parties hereto agree to the Purchase Price minus (x) the Escrow Amount and (y) the Stockholders’ Agent Reimbursement Escrow Amount, which shall be payable in cash to the Company Holders in accordance file all Tax Returns consistent with Sections 1.8, 1.9 and 1.10 and shall be subject to adjustment pursuant to ARTICLE VIIIsuch treatment. (c) Prior The Initial Amount, the Aggregate Series B Preference Amount, and the Aggregate Series A Preference Amount shall be payable $120,000,000 in cash and the remaining amount in shares of Parent Common Stock based on the Parent Stock Value. Notwithstanding the foregoing sentence, any Effective Time Holder that is unable to deliver an accredited investor certificate with its Letter of Transmittal certifying such Effective Time Holder’s status as an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D promulgated under the Closing, in addition to such other actions as Securities Act) may be provided for herein the Company shall deliver to Parentreceive, at least five (5) Business Days prior to the ClosingParent’s election, a closing statement (the “Closing Statement”) setting forth the Company’s calculation its portion of the Purchase PriceInitial Amount, which shall be determined in accordance with Section 1.7(a) the Aggregate Series B Preference Amount, and shall set forththe Aggregate Series A Preference Amount, as applicable, otherwise payable hereunder in shares of the anticipated Closing Date (i) the Indebtedness Adjustment, (ii) the aggregate amount of the Change of Control and Severance Payments, (iii) the Company Transaction Expenses, the Persons owed such amounts and, to the extent available to the Company, the bank account and wire transfer information for such Person and (iv) the Tax Benefit Adjustment, each as a separate line itemParent Common Stock in cash. (d) At Notwithstanding anything to the Closingcontrary contained in this Agreement, in addition to such other actions as may be provided for herein: (i) The Company shall deliver a certification by an officer no event will the aggregate number of shares of Parent Common Stock issuable in the Merger exceed 19.9% of the Company that the Closing Statement correctly reflects the calculations contained therein as required to be made pursuant to this Agreement; (ii) number of shares of Parent shall make the payment to the Paying Agent described in Section 1.10(b); (iii) Parent shall deposit the Escrow Amount with the Escrow Agent pursuant to Section 8.1; (iv) Parent shall deposit the Stockholders’ Agent Reimbursement Escrow Amount with the Escrow Agent; and (v) Parent shall pay all Company Transaction Expenses that remain unpaid as of the close of business Common Stock outstanding on the trading day immediately prior to before the Closing Date to such accounts date hereof (as are designated by the Company in accordance with Section 1.7(cappropriately adjusted for any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon).