Effect of the First Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company (and after the Reorganization, Newco), the holders of Company Interests or the holders of any of the securities of Parent, the following shall occur: (a) Each share of Company Stock (other than Excluded Shares) issued and outstanding immediately prior to the Effective Time will be cancelled and automatically deemed for all purposes to represent the right to receive a portion of the Merger Consideration, with each Company Stockholder being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of the Applicable Charter Documents (as reflected in the Company Closing Statement), in each case, without interest, upon surrender of stock certificates representing all of such Company Stockholder’s Company Stock (each, a “Certificate”) and delivery of the other documents required pursuant to Section 2.9. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Certificate relating to the ownership of shares of Company Stock (other than Excluded Shares) shall thereafter represent only the right to receive the applicable portion of the Merger Consideration. (b) Each Company Warrant that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of Company Warrants being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such Company Warrant and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such Company Warrant, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a Company Warrant exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such Company Warrant shall be automatically terminated for no consideration immediately prior to the Effective Time and shall be of no further force or effect, and the holder of such Company Warrant shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of Company Warrants shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Company Warrant shall thereafter represent only the right to receive the applicable portion of the Merger Consideration. (c) Each vested Company Option that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of vested Company Options being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such vested Company Option and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such vested Company Option, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a vested Company Option exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such vested Company Option shall be cancelled for no consideration immediately prior to the Effective Time, and the holder of vested Company Options shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of vested Company Options shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity. Payments of the Closing Cash Payment Amount in respect of this Section 2.7(c) shall be remitted through the payroll system of the Surviving Entity upon delivery of an Option Termination Agreement in accordance with Section 2.9 and subject to applicable deduction or withholding pursuant to Section 2.10. (d) Each unvested Company Option that is outstanding immediately prior to the Effective Time will be converted into an option to purchase a number of shares of Parent Class A Common Stock (each such option, an “Exchanged Option”) equal to the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time, as equitably adjusted pursuant to a conversion ratio applied in, and subject the terms and conditions of, the Company Closing Statement or as otherwise agreed upon by the Parties (the “Exchange Ratio”) and rounded down to the nearest whole number, with an exercise price per share equal to the exercise price per share of such Company Option immediately prior to the Effective Time, as equitably adjusted pursuant to the Exchange Ratio and rounded up to the nearest whole cent; provided, however, that the number of shares and exercise price of Parent Class A Common Stock purchasable pursuant to the Exchanged Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any Exchanged Option to which Section 422 of the Code applies, the exercise price and the number of shares of Parent Class A Common Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following the Effective Time, each Exchanged Option shall continue to be governed by substantially the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option immediately prior to the Effective Time. As promptly as practicable following the Effective Time and, in any event, in accordance with applicable Law, Parent shall file an appropriate registration statement or registration statements with respect to the shares of Parent Class A Common Stock underlying such Exchanged Options and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such awards remain outstanding. (e) No fraction of a share of Parent Class A Common Stock will be issued by virtue of the First Merger, and each holder of Company Interests who would otherwise be entitled to a fraction of a share of Parent Class A Common Stock (after aggregating all fractional shares of Parent Class A Common Stock that otherwise would be received by such holder of Company Interests) shall receive from Parent, in lieu of such fractional share: (i) one share of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is less than 0.50. (f) Each issued and outstanding share of common stock of First Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, which shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of First Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence. (g) Each share of Company Stock held in the Company’s (or after the Reorganization, Newco’s) treasury or owned by Parent, First Merger Sub, Second Merger Sub or the Company (or after the Reorganization, Newco) immediately prior to the Effective Time (together with the Dissenting Shares, the “Excluded Shares”), shall be cancelled and no consideration shall be paid or payable with respect thereto. (h) The number of shares of Parent Class A Common Stock that the holders of Company Interests are entitled to receive as a result of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Common Stock occurring on or after the date hereof and prior to the Closing.
Appears in 1 contract
Effect of the First Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company, any Company (and after the Reorganization, Newco), the holders of Company Interests Interest Holder or the holders any holder of any of the securities of Parent, the following shall occur:
(a) (i) Each share of New Company Class V Common Stock issued and outstanding immediately prior to the Effective Time will be cancelled and automatically deemed for all purposes to represent the right to receive, and the holder of such share of New Company Class V Common Stock shall be entitled to receive, the Per Share Company Stock Consideration pursuant to this Section 2.6(a), issuable in Parent Class V Common Stock, in each case, without interest, upon surrender of stock certificates, if applicable, representing all of such Company Stockholder’s New Company Class V Common Stock (each, a “New Company Class V Common Stock Certificate”) and delivery of the other documents required pursuant to Section 2.8, and (ii) each share of Company Stock (other than Excluded Shares, the shares of New Company Class V Common Stock and shares of unvested Company Restricted Stock) issued and outstanding immediately prior to the Effective Time will be cancelled and automatically deemed for all purposes to represent the right to receive a portion receive, and the holder of the Merger Consideration, with each such share of Company Stockholder being Stock shall be entitled to receive a portion of receive, the Closing Cash Payment Amount and the Closing Number of Securities Per Share Company Stock Consideration pursuant to this Section 2.6(a), issuable in accordance with the terms of the Applicable Charter Documents (as reflected in the Company Closing Statement)Parent Class A Common Stock, in each case, without interest, upon surrender of stock certificates certificates, if any, representing all of such Company Stockholder’s Company Stock (eacheach such certificate and each such New Company Class V Common Stock Certificate, a “Certificate”) and delivery of the other documents required pursuant to Section 2.92.8. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company (and after the Reorganization, Newco)Company, the Surviving Corporation or the Surviving Entity, and each Certificate relating to the ownership of shares of Company Stock (other than Excluded Shares) shall thereafter represent only the right to receive the applicable portion of the Merger Per Share Company Stock Consideration.
(b) Each Company Warrant that is outstanding and unexercised immediately prior to the Effective Time (whether vested or unvested) will be treated automatically terminate in accordance with its terms and cancelled be of no further force or effect as of the Effective Time in exchange for Time; provided that the right to receive foregoing shall not affect the ability of a portion of the Merger Consideration, with each holder of any Company Warrants being entitled to receive a portion of exercise such Company Warrants in connection with the Closing Cash Payment Amount and the Closing Number of Securities in accordance with Transactions pursuant to the terms of such Company Warrant Warrants.
(c) Each Company Option that is outstanding and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such Company Warrant, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a Company Warrant exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such Company Warrant shall be automatically terminated for no consideration unexercised immediately prior to the Effective Time and shall be of no further force (whether vested or effect, and the holder of such Company Warrant shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of Company Warrants shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Company Warrant shall thereafter represent only the right to receive the applicable portion of the Merger Consideration.
(c) Each vested Company Option that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of vested Company Options being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such vested Company Option and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such vested Company Option, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a vested Company Option exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such vested Company Option shall be cancelled for no consideration immediately prior to the Effective Time, and the holder of vested Company Options shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of vested Company Options shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity. Payments of the Closing Cash Payment Amount in respect of this Section 2.7(cunvested) shall automatically be remitted through the payroll system of the Surviving Entity upon delivery of an Option Termination Agreement in accordance with Section 2.9 assumed by Parent and subject to applicable deduction or withholding pursuant to Section 2.10.
(d) Each unvested Company Option that is outstanding immediately prior to the Effective Time will be converted into an option to purchase acquire a number of shares of Parent Class A Common Stock at an adjusted exercise price per share, in each case, as determined under this Section 2.6(c) (each such resulting option, an a “Exchanged Rollover Option”) equal ). Each Rollover Option shall be subject to the number of shares of Company Common Stock subject same terms and conditions as were applicable to such corresponding Company Option immediately prior to the Effective TimeTime (including applicable vesting conditions), as equitably adjusted pursuant except to a conversion ratio applied in, and subject the extent such terms and or conditions of, the Company Closing Statement or as otherwise agreed upon are rendered inoperative by the Transactions or such other immaterial administrative or ministerial changes as the Parties may determine are appropriate to effectuate the administration of the Rollover Options. Accordingly, effective as of the Effective Time: (i) each such Rollover Option shall be exercisable solely for shares of Parent Class A Common Stock; (ii) the “Exchange Ratio”) number of shares of Parent Class A Common Stock subject to each Rollover Option shall be determined by multiplying the number of shares of Company Stock subject to the corresponding Company Option by the Per Share Company Stock Consideration and rounded rounding the resulting number down to the nearest whole numbernumber of shares of Parent Class A Common Stock (such shares of Parent Class A Common Stock issuable upon exercise of a Rollover Option, with an the “Rollover Option Shares”); and (iii) the per share exercise price for the Rollover Option Shares issuable upon exercise of such Rollover Option shall be determined by dividing the per share equal exercise price for the shares of Company Stock subject to the exercise price per share of such Company Option Option, as in effect immediately prior to the Effective Time, as equitably adjusted pursuant to by the Exchange Ratio Per Share Company Stock Consideration, and rounded rounding the resulting exercise price up to the nearest whole cent; provided. Notwithstanding the foregoing, however, that the number of shares and exercise price of Parent Class A Common Stock purchasable pursuant to the Exchanged Options conversions described in this Section 2.6(c) shall be determined occur in a manner consistent with the requirements of Section 409A of the Code; providedCode and, further, that in the case of any Exchanged Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of Parent Class A Common Stock purchasable pursuant to such option shall be determined in accordance a manner consistent with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following Prior to the Effective Time, each Exchanged the Company shall perform such actions as are required under the Company Stock Plans and the awards governing the Company Options in order to effect the treatment of the Company Options described in this Section 2.6(c).
(d) Each Company Non-Plan Option shall continue to be governed by substantially the same terms that is outstanding and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option unexercised immediately prior to the Effective Time. As promptly as practicable following Time shall be automatically cancelled for no consideration.
(e) Each award of Company Restricted Stock that is outstanding and unvested immediately prior to the Effective Time and, in any event, in accordance with applicable Law, shall automatically be assumed by Parent shall file and converted into an appropriate registration statement or registration statements award of restricted stock with respect to the a number of shares of Parent Class A Common Stock underlying (the “Rollover Restricted Stock”) determined by multiplying the number of shares of Company Restricted Stock subject to such Exchanged Options award by the Per Share Company Stock Consideration and shall use commercially reasonable efforts rounding the resulting number down to maintain the effectiveness nearest whole number of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such awards remain outstanding.
(e) No fraction of a share shares of Parent Class A Common Stock. Each share of Rollover Restricted Stock will shall be issued subject to the same terms and conditions as were applicable to such corresponding share of Company Restricted Stock immediately prior to the Effective Time (including applicable vesting conditions), except to the extent such terms or conditions are rendered inoperative by virtue the Transactions or such other immaterial administrative or ministerial changes as the Parties may determine are appropriate to effectuate the administration of the First Merger, and each holder Rollover Restricted Stock. The Parties intend that the Rollover Restricted Stock payable pursuant to this Section 2.6(e) to the holders of Company Interests who would otherwise be entitled to a fraction of a share of Parent Class A Common Stock (after aggregating all but only with respect to their Company Common Stock which was fully vested upon receipt or for which they have filed timely and valid elections under Section 83(b) of the Code) will be treated as received in exchange for the applicable holder’s Company Common Stock, and agree to report for income Tax purposes such payments as consideration for such holder’s Company Common Stock and not as compensation for services. Pursuant to Revenue Ruling 2007-49, the holders of Company Common Stock that receive Rollover Restricted Stock in the First Merger pursuant to this Section 2.6(e) that are subject to vesting arrangements will make a timely and valid election under Section 83(b) of the Code with respect to such Rollover Restricted Stock, in which case, the Parties agree that no compensation will occur when such Rollover Restricted Stock is issued or vests.
(f) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Parent Class A Common Stock that otherwise would or Parent Class V Common Stock shall be received by such holder issued upon the conversion of Company Interests) shall receive from Parent, in lieu of as applicable pursuant to this Section 2.6, and such fractional share: (i) one share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Parent Class A Common Stock if the aggregate amount of Stock. No payment shall be made with respect to fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A V Common Stock if Stock, and the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise number thereof shall be entitled rounded down to is less than 0.50the nearest whole number.
(fg) Each issued and outstanding share of common stock of First Merger Sub shall be converted into and become one (1) validly issued, fully paid and nonassessable share of common stock, par value $0.01 0.0001 per share, of the Surviving Corporation, which shall constitute the only outstanding shares of capital stock or other equity securities of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of First Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.
(gh) Each Other than the shares of common stock contemplated by Section 2.6(g), each share of Company Stock held in the Company’s (or after the Reorganization, Newco’s) treasury or owned by Parent, First Merger Sub, Second Merger Sub or the Company (or after the Reorganization, Newco) immediately prior to the Effective Time (together with the Dissenting Shares, the “Excluded Shares”), shall be cancelled and no consideration shall be paid or payable with respect thereto.
(hi) The number numbers of shares of Parent Class A Common Stock or Parent Class V Common Stock, as applicable, that the holders of Company Interests are entitled to receive as a result of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Common Stock or Parent Class V Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Common Stock or Parent Class V Common Stock occurring on or after the date hereof and prior to the Closing.
(j) Subject to Section 2.6(i), for the avoidance of doubt and notwithstanding anything herein to the contrary, the aggregate consideration to be received by (other otherwise allocable to) the Company Interest Holders in respect of the First Merger pursuant to this Section 2.6 shall be equal to (and in no event shall exceed) the Aggregate Stock Consideration.
Appears in 1 contract
Samples: Merger Agreement (VPC Impact Acquisition Holdings III, Inc.)
Effect of the First Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company (and after the Reorganization, Newco)Company, the holders of Company Interests or the holders of any of the securities of Parent, the following shall occur:
(a) Each share of Company Stock (other than Excluded SharesShares and shares of unvested Company Restricted Stock) issued and outstanding immediately prior to the Effective Time will be cancelled and automatically deemed for all purposes to represent the right to receive a portion receive, and the holder of the Merger Consideration, with each such share of Company Stockholder being Stock shall be entitled to receive a portion of receive, the Closing Cash Payment Amount and the Closing Number of Securities Per Share Company Stock Consideration pursuant to this Section 2.6(a), issuable in accordance with the terms of the Applicable Charter Documents (as reflected in the Company Closing Statement)Parent Class A Common Stock, in each case, without interest, upon surrender of stock certificates representing all of such Company Stockholder’s Company Stock (each, a “Certificate”) and delivery of the other documents required pursuant to Section 2.92.8. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company (and after the Reorganization, Newco)Company, the Surviving Corporation or the Surviving Entity, and each Certificate relating to the ownership of shares of Company Stock (other than Excluded Shares) shall thereafter represent only the right to receive the applicable portion of the Merger Per Share Company Stock Consideration.
(b) Each Company Warrant that is outstanding and unexercised immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of Company Warrants being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such Company Warrant and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such Company Warrant, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a Company Warrant exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such Company Warrant shall be automatically terminated for no consideration immediately prior to the Effective Time and shall be of no further force or effect, and the holder of such Company Warrant shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of Company Warrants shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Company Warrant shall thereafter represent only the right to receive the applicable portion of the Merger Consideration.
(c) Each vested Company Option that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of vested Company Options being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such vested Company Option and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such vested Company Option, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a vested Company Option exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such vested Company Option shall be cancelled for no consideration immediately prior to the Effective Time, and the holder of vested Company Options shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of vested Company Options shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity. Payments of the Closing Cash Payment Amount in respect of this Section 2.7(c) shall be remitted through the payroll system of the Surviving Entity upon delivery of an Option Termination Agreement in accordance with Section 2.9 and subject to applicable deduction or withholding pursuant to Section 2.10.
(d) Each unvested Company Option that is outstanding immediately prior to the Effective Time will be converted into an option a warrant to purchase acquire a number of shares of Parent Class A Common Stock at an adjusted exercise price per share, in each case, as determined under this Section 2.6(b) (each such optionresulting warrant, an “Exchanged OptionAssumed Warrant”). Each Assumed Warrant shall be subject to the same terms and conditions as were applicable to such corresponding Company Warrant immediately prior to the Effective Time (including applicable vesting conditions), except to the extent such terms or conditions are rendered inoperative by the Transactions or such other immaterial administrative or ministerial changes as the Parties may determine are appropriate to effectuate the administration of the Assumed Warrants. Accordingly, effective as of the Effective Time: (a) equal each such Assumed Warrant shall be exercisable solely for shares of Parent Class A Common Stock; (b) the number of shares of Parent Class A Common Stock subject to each Assumed Warrant shall be determined by multiplying the number of shares of Company Common Stock subject to the Company Warrant by the Per Share Company Stock Consideration and rounding the resulting number down to the nearest whole number of shares of Parent Class A Common Stock; and (c) the per share exercise price for the Parent Class A Common Stock issuable upon exercise of such Company Warrant shall be determined by dividing the per share exercise price for the shares of Company Stock subject to the Company Warrant, as in effect immediately prior to the Effective Time, by the Per Share Company Stock Consideration, and rounding the resulting exercise price up to the nearest whole cent. Prior to the Effective Time, the Company shall, if applicable, deliver any notices and obtain any consents required in order to effect the treatment of the Company Warrants described in this Section 2.6(b) pursuant to the terms of the Company Warrants and any plan or similar document governing the Company Warrants.
(c) Each Company Option that is outstanding and unexercised immediately prior to the Effective Time (whether vested or unvested) shall automatically be assumed by Parent and converted into an option to acquire a number of shares of Parent Class A Common Stock at an adjusted exercise price per share, in each case, as determined under this Section 2.6(c) (each such resulting option, a “Rollover Option”). Each Rollover Option shall be subject to the same terms and conditions as were applicable to such corresponding Company Option immediately prior to the Effective TimeTime (including applicable vesting conditions), as equitably adjusted pursuant except to a conversion ratio applied in, and subject the extent such terms and or conditions of, the Company Closing Statement or as otherwise agreed upon are rendered inoperative by the Transactions or such other immaterial administrative or ministerial changes as the Parties may determine are appropriate to effectuate the administration of the Rollover Options. Accordingly, effective as of the Effective Time: (i) each such Rollover Option shall be exercisable solely for shares of Parent Class A Common Stock; (ii) the “Exchange Ratio”) number of shares of Parent Class A Common Stock subject to each Rollover Option shall be determined by multiplying the number of shares of Company Stock subject to the corresponding Company Option by the Per Share Company Stock Consideration and rounded rounding the resulting number down to the nearest whole number, with an number of shares of Parent Class A Common Stock; and (iii) the per share exercise price for the Parent Class A Common Stock issuable upon exercise of such Rollover Option shall be determined by dividing the per share equal exercise price for the shares of Company Stock subject to the exercise price per share of such Company Option Option, as in effect immediately prior to the Effective Time, as equitably adjusted pursuant to by the Exchange Ratio Per Share Company Stock Consideration, and rounded rounding the resulting exercise price up to the nearest whole cent; provided. Notwithstanding the foregoing, however, that the number of shares and exercise price of Parent Class A Common Stock purchasable pursuant to the Exchanged Options conversions described in this Section 2.6(c) shall be determined occur in a manner consistent with the requirements of Section 409A of the Code; providedCode and, further, that in the case of any Exchanged Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of Parent Class A Common Stock purchasable pursuant to such option shall be determined in accordance a manner consistent with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following Prior to the Effective Time, each Exchanged the Company shall perform such actions as are required under the Company Stock Plans and the awards governing the Company Options in order to effect the treatment of the Company Options described in this Section 2.6(c).
(d) Each Company Non-Plan Option shall continue to be governed by substantially the same terms that is outstanding and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option unexercised immediately prior to the Effective Time. As promptly as practicable following Time shall be automatically cancelled for no consideration.
(e) Each award of Company Restricted Stock that is outstanding and unvested immediately prior to the Effective Time and, in any event, in accordance with applicable Law, shall automatically be assumed by Parent shall file and converted into an appropriate registration statement or registration statements award of restricted stock with respect to the a number of shares of Parent Class A Common Stock underlying (the “Rollover Restricted Stock”) determined by multiplying the number of shares of Company Restricted Stock subject to such Exchanged Options award by the Per Share Company Stock Consideration and rounding the resulting number down to the nearest whole number of shares of Parent Class A Common Stock. Each share of Rollover Restricted Stock shall use commercially reasonable efforts be subject to maintain the effectiveness same terms and conditions as were applicable to such corresponding share of Company Restricted Stock immediately prior to the Effective Time (including applicable vesting conditions), except to the extent such registration statement terms or registration statements (and maintain conditions are rendered inoperative by the current status Transactions or such other immaterial administrative or ministerial changes as the Parties may determine are appropriate to effectuate the administration of the prospectus Rollover Restricted Stock. The Parties intend that the Rollover Restricted Stock payable pursuant to this Section 2.6(e) to the holders of Company Common Stock (but only with respect to their Company Common Stock which was fully vested upon receipt or prospectuses contained thereinfor which they have filed timely and valid elections under Section 83(b) of the Code) will be treated as received in exchange for so long the applicable holder’s Company Common Stock, and agree to report for income Tax purposes such payments as consideration for such awards remain outstandingholder’s Company Common Stock and not as compensation for services. Pursuant to Revenue Ruling 2007-49, the holders of Company Common Stock that receive Rollover Restricted Stock in the First Merger pursuant to this Section 2.6(e) that are subject to vesting arrangements will make a timely and valid election under Section 83(b) of the Code with respect to such Rollover Restricted Stock, in which case, the Parties agree that no compensation will occur when such Rollover Restricted Stock is issued or vests.
(ef) No fraction Immediately prior to the Effective Time, each outstanding Company SAFE shall be automatically converted into the right to receive the aggregate Per Share Company Stock Consideration payable in accordance with the terms of such applicable Company SAFE in connection with the Transactions (for the avoidance of doubt, with respect to each Company SAFE, such aggregate Per Share Company Stock Consideration shall be equal to (i) the number of shares of Company Stock equal to the (A) Purchase Amount (as defined in each such Company SAFE), divided by (B) Liquidity Price (as defined in each such Company SAFE) applicable to such Company SAFE, multiplied by (ii) the Per Share Company Stock Consideration). Each Company SAFE so converted shall immediately thereafter terminate in accordance with its terms.
(g) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Parent Class A Common Stock shall be issued upon the conversion of Company Interests, as applicable pursuant to this Section 2.6, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Parent Class A Common Stock. In lieu of the issuance of any such fractional share, Parent shall pay to each former holder of Company Interests (other than Excluded Shares) who otherwise would be entitled to receive such fractional share an amount in cash, without interest, rounded down to the nearest cent, equal to the product of (a) the amount of the fractional share interest in a share of Parent Class A Common Stock will be issued by virtue of the First Merger, and each to which such holder of Company Interests who would otherwise be entitled to a fraction of a share of Parent Class A Common Stock (after aggregating all fractional shares of Parent Class A Common Stock that otherwise would be received have been entitled but for this Section 2.6(g), multiplied by such holder of Company Interests(b) shall receive from Parent, in lieu of such fractional share: (i) one share of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is less than 0.50$10.00.
(fh) Each issued and outstanding share of common stock of First Merger Sub shall be converted into and become one (1) validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, which shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of First Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.
(gi) Each share of Company Stock held in the Company’s (or after the Reorganization, Newco’s) treasury or owned by Parent, First Merger Sub, Second Merger Sub or the Company (or after the Reorganization, Newco) immediately prior to the Effective Time (together with the Dissenting Shares, the “Excluded Shares”), shall be cancelled and no consideration shall be paid or payable with respect thereto.
(hj) The number numbers of shares of Parent Class A Common Stock that the holders of Company Interests are entitled to receive as a result of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Common Stock occurring on or after the date hereof and prior to the Closing.
Appears in 1 contract
Effect of the First Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company (and after the Reorganization, Newco), the holders of Company Interests or the holders of any of the securities of ParentPerson, the following shall occur:
(a) Each share of Company Common Stock (other than Excluded Shares) that is issued and outstanding immediately prior to the Effective Time will (other than any Company Dissenting Shares and shares of Company Common Stock to be cancelled pursuant to Section 2.3(c)), shall thereupon be converted into, and automatically deemed for all purposes the holder of such share of Company Common Stock shall be entitled to, (i) subject to represent the provisions of Section 2.10, the contingent right to receive a number of Earnout Shares (which may be zero (0)) following the Closing in accordance with Section 2.10 and (ii) the right to receive a portion of the Per Share Merger Consideration, with each Company Stockholder being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of the Applicable Charter Documents (as reflected in the Company Closing Statement), in each case, without interest, upon surrender to the applicable Company Stockholder in accordance with Section 2.5 and Section 2.6; provided, that any shares of stock Company Common Stock converting into shares of Parent Common Stock pursuant to this Section 2.3 that are subject to vesting or substantial risk of forfeiture (within the meaning of Section 83 of the Code) immediately prior to the Effective Time shall be subject to such same vesting (as set forth on Schedule 3.3(b)) or substantial risk of forfeiture in accordance with their terms following the conversion. Notwithstanding anything herein to the contrary, no certificates or scrip representing a fractional share of Parent Common Stock shall be issued to any of the Company Stockholders in connection with the issuance of the Stock Consideration, and to the extent a fractional share of Parent Common Stock is issuable as part of the Stock Consideration after aggregating all fractional shares of Parent Common Stock that otherwise would otherwise be received by such Company Stockholder, then in lieu of the issuance of any such fractional share, Parent shall pay to such Company Stockholder(s) an amount in cash, without interest, rounded down to the nearest cent, determined by multiplying (A) the amount of the fractional share interest in a share of Parent Common Stock to which such holder otherwise would have been entitled to receive, by (B) $10.00 (such amount with respect to each Company Stockholder, such Company Stockholder’s Company Stock “Fractional Share Cash Amount”);
(each, a “Certificate”b) and delivery all of the other documents required pursuant to Section 2.9. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Certificate relating to the ownership of shares of Company Common Stock (other than Excluded Shares) shall thereafter represent only converted into the right to receive the applicable portion Per Share Merger Consideration and contingent right to receive a number of Earnout Shares (which may be zero (0)) following the Closing pursuant to this Section 2.3 and Section 2.10, respectively, shall no longer be outstanding and shall cease to exist, and each holder of Company Common Stock shall thereafter cease to have any rights with respect to such securities, except the right to receive the Per Share Merger Consideration and the contingent right to a number of Earnout Shares (which number of shares may be zero (0)) following the Closing pursuant to Section 2.10 into which such shares of Company Common Stock shall have been converted in the First Merger;
(c) each share of Company Common Stock held in the treasury of the Merger Consideration.Company immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto; and
(bd) Each Company Warrant that is each share of common stock, par value $0.01 per share, of Merger Sub I issued and outstanding immediately prior to the Effective Time will shall no longer be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of Company Warrants being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such Company Warrant and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such Company Warrant, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a Company Warrant exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such Company Warrant shall be automatically terminated for no consideration immediately prior to the Effective Time outstanding and shall be of no further force or effect, and the holder of such Company Warrant shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of Company Warrants shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Company Warrant shall thereafter represent only the right to receive the applicable portion of the Merger Consideration.
(c) Each vested Company Option that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of vested Company Options being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such vested Company Option and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such vested Company Option, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a vested Company Option exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such vested Company Option shall be cancelled for no consideration immediately prior to the Effective Time, and the holder of vested Company Options shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of vested Company Options shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity. Payments of the Closing Cash Payment Amount in respect of this Section 2.7(c) shall be remitted through the payroll system of the Surviving Entity upon delivery of an Option Termination Agreement in accordance with Section 2.9 and subject to applicable deduction or withholding pursuant to Section 2.10.
(d) Each unvested Company Option that is outstanding immediately prior to the Effective Time will be converted into an option to purchase a number of shares of Parent Class A Common Stock (each such option, an “Exchanged Option”) equal to the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time, as equitably adjusted pursuant to a conversion ratio applied in, and subject the terms and conditions of, the Company Closing Statement or as otherwise agreed upon by the Parties (the “Exchange Ratio”) and rounded down to the nearest whole number, with an exercise price per share equal to the exercise price per share of such Company Option immediately prior to the Effective Time, as equitably adjusted pursuant to the Exchange Ratio and rounded up to the nearest whole cent; provided, however, that the number of shares and exercise price of Parent Class A Common Stock purchasable pursuant to the Exchanged Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any Exchanged Option to which Section 422 of the Code applies, the exercise price and the number of shares of Parent Class A Common Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following the Effective Time, each Exchanged Option shall continue to be governed by substantially the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option immediately prior to the Effective Time. As promptly as practicable following the Effective Time and, in any event, in accordance with applicable Law, Parent shall file an appropriate registration statement or registration statements with respect to the shares of Parent Class A Common Stock underlying such Exchanged Options and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such awards remain outstanding.
(e) No fraction of a share of Parent Class A Common Stock will be issued by virtue of the First Merger, and each holder of Company Interests who would otherwise be entitled to a fraction of a share of Parent Class A Common Stock (after aggregating all fractional shares of Parent Class A Common Stock that otherwise would be received by such holder of Company Interests) shall receive from Parent, in lieu of such fractional share: (i) one share of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is less than 0.50.
(f) Each issued and outstanding share of common stock of First Merger Sub shall thereupon be converted into and become one validly issued, issued fully paid and nonassessable non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation, which and all such shares shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after Corporation as of immediately following the Effective Time, all certificates representing the common stock of First Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.
(g) Each share of Company Stock held in the Company’s (or after the Reorganization, Newco’s) treasury or owned by Parent, First Merger Sub, Second Merger Sub or the Company (or after the Reorganization, Newco) immediately prior to the Effective Time (together with the Dissenting Shares, the “Excluded Shares”), shall be cancelled and no consideration shall be paid or payable with respect thereto.
(h) The number of shares of Parent Class A Common Stock that the holders of Company Interests are entitled to receive as a result of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Common Stock occurring on or after the date hereof and prior to the Closing.
Appears in 1 contract
Effect of the First Merger. Upon At the terms and subject to the conditions of this Agreement, at the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company (and after the Reorganization, Newco), the holders of Company Interests any Party or the holders of any of the securities of Parent, the following shall occurother Person:
(ai) Each share of Company Class A Common Stock (other than Excluded Sharesincluding, for the avoidance of doubt, each share of Restricted Stock, each share of Company Class A Common Stock converted from shares of Company Preferred Stock in the Company Preferred Conversion and each share of Company Class A Common Stock issued in connection with the Hyros Acquisition) that is issued and outstanding immediately prior to the First Effective Time will (other than Dissenting Shares, which shall be cancelled and automatically deemed for all purposes to represent the right to receive a portion of the Merger Consideration, with each Company Stockholder being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of the Applicable Charter Documents (as reflected treated in the Company Closing Statementmanner as set forth in Section 2.2(i), in each case, without interest, upon surrender of stock certificates representing all of such Company Stockholder’s Company Stock (each, a “Certificate”) and delivery of the other documents required pursuant to Section 2.9. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Certificate relating to the ownership of shares of Company Stock (other than Excluded Shares) shall thereafter represent only the right to receive the applicable portion of the Merger Consideration.
(b) Each Company Warrant that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of Company Warrants being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such Company Warrant and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such Company Warrant, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a Company Warrant exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Class A Common Stock, such Company Warrant shall be automatically terminated for no consideration immediately prior to if any, held in the Effective Time and shall be of no further force or effect, and the holder of such Company Warrant shall have no further rights to any portion treasury of the Merger Consideration otherwise. As of the Effective TimeCompany, each holder of Company Warrants shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity, and each Company Warrant shall thereafter represent only the right to receive the applicable portion of the Merger Consideration.
(c) Each vested Company Option that is outstanding immediately prior to the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of vested Company Options being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of such vested Company Option and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such vested Company Option, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a vested Company Option exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such vested Company Option which treasury shares shall be cancelled for no consideration immediately prior to the Effective Time, and the holder of vested Company Options shall have no further rights to any portion as part of the Merger Consideration otherwise. As of the Effective Time, each holder of vested Company Options shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity. Payments of the Closing Cash Payment Amount in respect of this Section 2.7(cFirst Merger) shall be remitted through the payroll system of the Surviving Entity upon delivery of an Option Termination Agreement in accordance with Section 2.9 cancelled and subject to applicable deduction or withholding pursuant to Section 2.10.
(d) Each unvested Company Option that is outstanding immediately prior to the Effective Time will be converted into an option and become the right to purchase receive (A) a number of shares of Parent 7GC New Class A Common Stock (each such option, an “Exchanged Option”) Shares equal to (x) the number of shares of Company Common Stock subject Per Share Value divided by (y) the Reference Price, plus (B) the right to such Company Option immediately prior to receive the Effective TimeEarn Out Shares, as equitably adjusted determined pursuant to Section 2.6, upon surrender of the Certificate in respect thereof, together with a conversion ratio applied inproperly completed Letter of Transmittal, and subject all in the terms and conditions of, the Company Closing Statement or as otherwise agreed upon by the Parties (the “Exchange Ratio”) and rounded down to the nearest whole number, with an exercise price per share equal to the exercise price per share of such Company Option immediately prior to the Effective Time, as equitably adjusted pursuant to the Exchange Ratio and rounded up to the nearest whole centmanner provided in Section 2.3; provided, however, that the number of shares and exercise price of Parent 7GC New Class A Common Stock purchasable pursuant to the Exchanged Options shall be determined Shares issued in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any Exchanged Option to which Section 422 of the Code applies, the exercise price and the number of exchange for shares of Parent Class A Common Restricted Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following the Effective Time, each Exchanged Option shall continue to be governed by substantially subject to the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option immediately prior to the Effective Time. As promptly as practicable following the Effective Time and, in any event, in accordance with applicable Law, Parent shall file an appropriate registration statement or registration statements with respect to the shares of Parent Class A Common Stock underlying such Exchanged Options and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status vesting) of the prospectus or prospectuses contained therein) for so long as such awards remain outstandingRestricted Stock.
(e) No fraction of a share of Parent Class A Common Stock will be issued by virtue of the First Merger, and each holder of Company Interests who would otherwise be entitled to a fraction of a share of Parent Class A Common Stock (after aggregating all fractional shares of Parent Class A Common Stock that otherwise would be received by such holder of Company Interests) shall receive from Parent, in lieu of such fractional share: (i) one share of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is less than 0.50.
(f) Each issued and outstanding share of common stock of First Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, which shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of First Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.
(g) Each share of Company Class B Common Stock held in the Company’s (or after the Reorganization, Newco’s) treasury or owned by Parent, First Merger Sub, Second Merger Sub or the Company (or after the Reorganization, Newco) that is issued and outstanding immediately prior to the First Effective Time (together with the other than Dissenting Shares, which shall be treated in the “Excluded Shares”manner as set forth in Section 2.2(i), and shares of Company Class B Common Stock, if any, held in the treasury of the Company, which treasury shares shall be cancelled for no consideration as part of the First Merger) shall be cancelled and no consideration shall be paid or payable with respect thereto.
converted into and become the right to receive (hA) The a number of shares of Parent 7GC New Class A Common Stock that B Shares equal to (x) the holders of Company Interests are entitled Per Share Value divided by (y) the Reference Price, plus (B) the right to receive the Earn Out Shares, as a result determined pursuant to Section 2.6, upon surrender of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately Certificate in respect thereof, together with a properly completed Letter of Transmittal, all in the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Common Stock occurring on or after the date hereof and prior to the Closingmanner provided in Section 2.3.
Appears in 1 contract
Effect of the First Merger. Upon On the terms and subject to the conditions of this Agreementset forth herein, at the First Merger Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company (and after the Reorganization, Newco), the holders of Company Interests any Party or the holders of any of the securities of ParentSPAC, the following shall occur:
(a) Immediately prior to the First Effective Time, every issued and outstanding SPAC Unit shall be automatically detached, to the extent the SPAC Units have not already detached, and the holder thereof shall be deemed to hold one share of SPAC Class A Common Stock and one-half of one SPAC Warrant in accordance with the terms of the applicable SPAC Unit, which underlying securities shall be converted in accordance with this Section 2.02.
(b) Each share of Company SPAC Class A Common Stock (other than Excluded Shares) issued and outstanding immediately prior to the First Merger Effective Time will shall be automatically cancelled and extinguished and converted into one share of New Pubco Common Stock, following which, all shares of SPAC Class A Common Stock shall cease to be outstanding and shall automatically deemed for all purposes be canceled and extinguished and shall cease to represent the right to receive a portion exist by virtue of the First Merger. The holders of SPAC Class A Common Stock outstanding immediately prior to the First Merger Consideration, with each Company Stockholder being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms of the Applicable Charter Documents (as reflected in the Company Closing Statement), in each case, without interest, upon surrender of stock certificates representing all of such Company Stockholder’s Company Stock (each, a “Certificate”) and delivery of the other documents required pursuant to Section 2.9. As of the Effective Time, each Company Stockholder Time shall cease to have any other rights in and with respect to the Company (and after the Reorganizationsuch shares, Newco), the Surviving Corporation except as expressly provided herein or the Surviving Entity, and each Certificate relating to the ownership of by Law. Each certificate previously evidencing shares of Company Stock (other than Excluded Shares) SPAC Class A Common Stock, if any, shall thereafter represent only the right to receive the applicable portion same number of shares of New Pubco Common Stock and shall be exchanged for a certificate (if requested) representing the Merger Considerationsame number of shares of New Pubco Common Stock upon the surrender of such certificate in accordance with Section 3.02.
(bc) Each Company Warrant that is share of SPAC Class B Common Stock issued and outstanding immediately prior to the First Merger Effective Time will shall be treated in accordance with its terms automatically cancelled and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of Company Warrants being entitled to receive a portion of the Closing Cash Payment Amount extinguished and the Closing Number of Securities in accordance with the terms of such Company Warrant and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such Company Warrant, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a converted into one share of Company Common Stock under a Company Warrant exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company New Pubco Common Stock, such Company Warrant following which, all shares of SPAC Class B Common Stock shall cease to be outstanding and shall automatically terminated for no consideration be canceled and extinguished and shall cease to exist by virtue of the First Merger. The holders of SPAC Class B Common Stock outstanding immediately prior to the First Merger Effective Time and shall be of no further force or effect, and the holder of such Company Warrant shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of Company Warrants shall cease to have any other rights in and with respect to the Company (and after the Reorganizationsuch shares, Newco)except as expressly provided herein or by Law. Each certificate previously evidencing shares of SPAC Class B Common Stock, the Surviving Corporation or the Surviving Entityif any, and each Company Warrant shall thereafter represent only the right to receive the applicable portion same number of shares of New Pubco Common Stock and shall be exchanged for a certificate (if requested) representing the Merger Consideration.
(c) Each vested Company Option that is outstanding immediately prior to same number of shares of New Pubco Common Stock upon the Effective Time will be treated in accordance with its terms and cancelled as of the Effective Time in exchange for the right to receive a portion of the Merger Consideration, with each holder of vested Company Options being entitled to receive a portion of the Closing Cash Payment Amount and the Closing Number of Securities in accordance with the terms surrender of such vested Company Option and the Applicable Charter Documents (as reflected in the Company Closing Statement), net of the exercise price of such vested Company Option, in each case, without interest, upon delivery of the documents required pursuant to Section 2.9. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock under a vested Company Option exceeds the applicable portion of the Merger Consideration payable in respect of such share of Company Common Stock, such vested Company Option shall be cancelled for no consideration immediately prior to the Effective Time, and the holder of vested Company Options shall have no further rights to any portion of the Merger Consideration otherwise. As of the Effective Time, each holder of vested Company Options shall cease to have any other rights in and to the Company (and after the Reorganization, Newco), the Surviving Corporation or the Surviving Entity. Payments of the Closing Cash Payment Amount in respect of this Section 2.7(c) shall be remitted through the payroll system of the Surviving Entity upon delivery of an Option Termination Agreement certificate in accordance with Section 2.9 and subject to applicable deduction or withholding pursuant to Section 2.103.02.
(d) Each unvested Company Option that is SPAC Private Placement Warrant issued and outstanding immediately prior to the First Merger Effective Time will be converted into an option to purchase automatically become a number New Pubco Private Placement Warrant exercisable for one share of shares of Parent Class A New Pubco Common Stock (Stock, and each such option, an “Exchanged Option”) equal to the number of shares of Company Common Stock subject to such Company Option SPAC Public Warrant issued and outstanding immediately prior to the First Merger Effective TimeTime will automatically become a New Pubco Public Warrant exercisable for one share of New Pubco Common Stock, as equitably adjusted pursuant to a conversion ratio applied in, and subject in each case at the terms and conditions of, the Company Closing Statement or as otherwise agreed upon by the Parties (the “Exchange Ratio”) and rounded down to the nearest whole number, with an same exercise price per share equal to and on the exercise price per share of such Company Option same terms in effect immediately prior to the First Merger Effective Time, as equitably adjusted pursuant to the Exchange Ratio and rounded up to the nearest whole cent; provided, however, that the number of shares and exercise price of Parent Class A Common Stock purchasable pursuant to the Exchanged Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any Exchanged Option to which Section 422 of the Code applies, the exercise price and the number rights and obligations of shares of Parent Class A Common Stock purchasable pursuant to such option shall SPAC under the SPAC Warrant Agreements will be determined in accordance with the foregoingirrevocably assigned to, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided aboveand assumed by, following the Effective Time, each Exchanged Option shall continue to be governed by substantially the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option immediately prior to the Effective Time. As promptly as practicable following the Effective Time and, in any event, in accordance with applicable Law, Parent shall file an appropriate registration statement or registration statements with respect to the shares of Parent Class A Common Stock underlying such Exchanged Options and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such awards remain outstandingNew Pubco.
(e) No fraction If there are any shares of a share SPAC that are owned by SPAC or any Subsidiary of Parent Class A Common Stock will be issued by virtue SPAC, or that are held as treasury shares, in each case as of the First MergerMerger Effective Time, such shares shall automatically be canceled, retired and each holder of Company Interests who would otherwise be entitled extinguished and shall cease to a fraction of a share of Parent Class A Common Stock (after aggregating all fractional shares of Parent Class A Common Stock that otherwise would be received by such holder of Company Interests) shall receive from Parentexist, in lieu of such fractional share: (i) one share of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is equal to without any conversion thereof or exceeds 0.50; or (ii) no shares of Parent Class A Common Stock if the aggregate amount of fractional shares of Parent Class A Common Stock such holder of Company Interests would otherwise be entitled to is less than 0.50payment therefor.
(f) Each If any certificate for securities of SPAC is to be issued and outstanding share of common stock of First Merger Sub in a name other than that in which the certificate surrendered in exchange therefor is registered, it shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, a condition of the Surviving Corporation, which issuance thereof that the certificate so surrendered shall constitute be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer and that the only outstanding shares of capital stock Person requesting such exchange shall have paid to New Pubco or any agent designated by it any transfer or other Taxes required by reason of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock issuance of First Merger Sub shall be deemed for all purposes to represent the number a certificate or securities of shares of common stock New Pubco in any name other than that of the Surviving Corporation into which they were converted in accordance with registered holder of the immediately preceding sentencecertificate surrendered, or established to the satisfaction of New Pubco or any agent designated by it that such Tax has been paid or is not payable.
(g) Each share Without limiting the generality of Company Stock held in the Company’s (or after foregoing, and subject thereto, at the ReorganizationFirst Effective Time, Newco’s) treasury or owned by Parentall the property, First Merger Subrights, Second privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of SPAC and DTRT Merger Sub or shall become the Company (or after the Reorganizationproperty, Newco) immediately prior to the Effective Time (together with the Dissenting Sharesrights, the “Excluded Shares”)privileges, shall be cancelled agreements, powers and no consideration shall be paid or payable with respect thereto.
(h) The number of shares of Parent Class A Common Stock that the holders of Company Interests are entitled to receive as a result franchises, debts, liabilities, duties and obligations of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Common Stock occurring on or after the date hereof and prior to the ClosingSurviving Corporation.
Appears in 1 contract
