Merger Consideration; Effect on Capital Stock. Subject to the terms and conditions of this Agreement, as of the Effective Date, by virtue of the Merger and without any action on the part of any holder of any Company Capital Stock, the following shall occur:
Merger Consideration; Effect on Capital Stock. The consideration to be paid by Parent in exchange for the acquisition of all outstanding Company Common Stock shall be (i) secured promissory notes payable for an aggregate principal amount of $250,000 in the form of Exhibit A hereto (the "First Notes"), (ii) 311,284 shares of Parent Common Stock, and (iii) the contractual obligation to issue up to 125,000 additional shares of Parent Common Stock in the event that certain milestones are reached as evidenced by the Earn-Out Plan attached hereto as Exhibit C."
Merger Consideration; Effect on Capital Stock. The aggregate maximum consideration to be provided by Parent and Merger Sub for all the outstanding Company capital stock and rights to acquire Company capital stock of the Company shall be $58,000,000, payable in cash and shares of Parent Common Stock, subject to adjustment as provided in subparagraph (f) below (such amount, as adjusted, the “Purchase Price”, and such Merger consideration, subject to adjustment as provided in subparagraph (f) below, the “Merger Consideration”). On the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any shares of Company capital stock, the following shall occur:
Merger Consideration; Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, Target or the holders of the Target Shares (the “Target Stockholders”), each Target Share issued and outstanding immediately prior to the Effective Time shall be converted and exchanged into the right to receive one share of Acquiror’s Common Stock. After the Effective Time, any certificates representing shares of Target Stock shall represent only the right to receive the consideration set forth in this Section 1.5.
(a) The aggregate consideration shall consist of two million five hundred thousand (2,500,000) validly issued, fully paid and nonassessable shares of the common stock of Acquiror, subject to Section 1.5(c) regarding fractional shares and ARTICLE V regarding indemnification (the “Shares”). The Shares shall be paid to the Target Stockholders as set forth on Schedule 1.5(a).
Merger Consideration; Effect on Capital Stock. Subject to the terms and conditions of this Agreement, as of the Effective Date, by virtue of the Merger and without any action on the part of any holder of any Company Capital Stock, the following shall occur:
(a) Each issued and outstanding share of common stock, par value $0.01 per share, of Merger Sub shall be converted into and become one validly issued, fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation, which shall constitute all of the issued and outstanding stock of the Surviving Corporation.
(b) Each share of Company Capital Stock that is owned by the Company as treasury stock immediately prior to the Effective Date shall automatically be cancelled and retired and shall cease to exist and no payment shall be made or consideration delivered in exchange therefore (the “Excluded Shares”).
(c) Each issued and outstanding share of Common Stock (other than shares to be cancelled pursuant to Section 4.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Date shall automatically be converted into and become the right to receive, without interest, the Common Stock Price Per Share. The holders of Common Stock will have no further rights against the Company, Parent or Merger Sub, or any of their respective Affiliates or any of their respective officers, directors, employees, agents, consultants, independent contractors or shareholders, in respect of any Common Stock from and after the Effective Date and after the payment required to be made to such holder of Common Stock pursuant to this Section 4.1(c) and shall look solely to the Stockholders’ Agent for payment of their respective Applicable Percentage Interest of any Earnout Payments, Working Capital Adjustment in favor of the Sellers and/or proceeds of the Escrow Fund or the Supplemental Escrow received by the Stockholders’ Agent.
(d) Each Company Option outstanding immediately prior to the Effective Date pursuant to any of the Company’s stock option plans or otherwise will at the Effective Date automatically be cancelled and the holder of such Company Option will, in full settlement of such Company Option and in exchange for the surrender to the Company of any certificate or other document evidencing such Company Option, receive from the Company an amount, in cash equal to the product of (x) the positive difference, if any, of the Common Stock Price Per Share less the exercise price per share of Common Stock of su...
Merger Consideration; Effect on Capital Stock. The aggregate number of --------------------------------------------- shares of common stock of Parent ("Parent Common Stock") to be issued (including ------------------- Parent Common Stock to be reserved for issuance upon exercise of any of the Company's outstanding options and stock purchase rights to be assumed by Parent) in exchange for the acquisition by Parent of all outstanding capital stock of the Company ("Company Capital Stock") and all outstanding unexpired and --------------------- unexercised options, warrants and stock purchase rights to acquire Company Capital Stock ("Company Capital Stock Number") shall be the result of ---------------------------- $105,854,000 divided by the average last reported sale price of Parent's Common Stock on The Nasdaq National Market as reported on The Wall Street Journal over the fifteen (15) trading day period ending on the trading day immediately preceding the Closing Date ("Aggregate Share Number"). No adjustment shall be ---------------------- made in the number of shares of Parent Common Stock issued in the Merger as a result of any cash proceeds received by the Company from the date hereof to the Closing Date pursuant to the exercise of options, stock purchase rights or warrants to acquire Company Capital Stock. Subject to the terms and conditions of this Agreement, as of the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holder of any shares of Company Capital Stock, the holder of any options, warrants or other rights to acquire or receive shares of Company Capital Stock, the following shall occur (which is intended to comply fully with the liquidation preference provisions set forth in Article IV, Section 2 of the Certificate of Incorporation of the Company, as amended through the date hereof):
Merger Consideration; Effect on Capital Stock. The aggregate maximum consideration to be paid to the Stockholders by Parent and Merger Sub for all the outstanding shares of Company Capital Stock and rights to acquire Company Capital Stock at the Closing shall be $140,000,000 in cash and shares of Parent Common Stock minus (i) the amount of any outstanding debt of the Company and its subsidiaries (the “Debt Amount”) under that certain Revolving Credit, Term Loan and Security Agreement dated May 18, 2004 among the Company, its subsidiaries and CapitalSource Finance LLC (the “CapitalSource Debt”), (ii) Third Party Expenses of the Company in the amount set forth on the Third Party Expense Schedule, and (iii) the Option Cancellation Price (as defined in Section 1.6(c), and subject to further adjustment as provided in Section 1.6(f) (such amount, as adjusted, the “Merger Consideration”), and subject to the deposit of a portion of the Merger Consideration into the Escrow Fund as provided in Section 1.8. Of the Merger Consideration, a portion shall consist of cash (such amount, as adjusted, the “Cash Consideration”) and the remainder shall consist of shares of Parent Common Stock (the “Stock Consideration”), in the amounts and allocated among the Stockholders as set forth in the Final Schedule 1.6(a). For the purposes of determining the number of shares of Parent Common Stock included in the Stock Consideration, each share of Parent Common Stock shall be valued at $10.22, the weighted average closing price of one share of Parent Common Stock on the NASDAQ National Market over the 5 trading day period ending on the trading day before the date hereof (the “Average Price”). Attached hereto as Schedule 1.6 (a)(1) is an estimate of the Third Party Expenses. On the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the Stockholders, the following shall occur:
Merger Consideration; Effect on Capital Stock. The aggregate maximum consideration to be paid by Parent and Merger Sub for all the outstanding shares of Company Capital Stock and rights to acquire Company Capital Stock at the Closing shall be $300,000,000 in cash, shares of Parent Common Stock and the assumption of Company Options, and subject to adjustment as provided in Sections 1.6(e) and 1.6(f) (such amount, as adjusted pursuant to Sections 1.6(e) and 1.6(f), the “Merger Consideration”), and subject to the deposit of a portion of the Merger Consideration into the Escrow Fund and the Equityholder Agent Reimbursement Set-Aside as provided in Section 1.8. With the exception of the Option Amount that will be reflected in the assumption of Company Options, amounts payable with respect to Dissenting Shares, and any adjustment pursuant to Section 1.15, 55% of the Merger Consideration in the aggregate shall consist of cash (such amount, as adjusted, the “Cash Consideration”) and 45% in the aggregate shall consist of shares of Parent Common Stock (the “Stock Consideration”). For the purposes of determining the number of shares of Parent Common Stock included in the Stock Consideration, each share of Parent Common Stock shall be valued at $17.97 (the “Average Price”). On the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, Merger Sub I, the Company or the Equityholders, the following shall occur:
Merger Consideration; Effect on Capital Stock. (a) At the Closing, Parent shall pay in cash to the Exchange Agent, on behalf of each of the Stockholders, an amount equal to the sum of the Base Cash Amount minus each of (A) the Escrow Amount (which shall be paid by Parent directly to the Escrow Agent), (B) Funded Indebtedness (which shall be paid in cash by Parent to Holdings’s, the Company’s and the Subsidiaries’ lenders, lessors and other creditors as directed by Holdings at the Closing), (C) Transaction Expenses (which shall be paid in cash by Parent as directed by Holdings at the Closing), and (D) $500,000 (which shall be paid in cash into the Reserve Account pursuant to Section 10.04) (the “Reserve Amount”), by wire transfer in immediately available funds. The net amount after the deductions described above (the “Closing Cash Payment”) will be allocated among each of the Stockholders in accordance with their respective Allocable Portions as set forth on Schedule 2.05(a).
(b) At the Closing, Parent shall deliver to the Exchange Agent on behalf of the Stockholders, in respect of the shares of Holdings Common Stock issued and outstanding immediately prior to the Effective Time, such number of shares of common stock, par value $1.00, of Parent (“Parent Common Stock”) as shall equal $140,000,000, before giving effect to any adjustments pursuant to Section 2.05(i) (as valued at the closing price thereof on the New York Stock Exchange the last Business Day prior to the Closing), to be allocated among each of the Stockholders in accordance with their respective Allocable Portions as set forth on Schedule 2.05(a).
(c) The Merger Consideration to be paid to (i) the holders of the capital stock of Holdings (the “Stockholders”) in exchange for the cancellation of their capital stock and their rights as such holders pursuant to Subsections 2.05(a) and 2.05(b) shall be subject to adjustment as specified in Sections 2.06 and 2.10(a), and (ii) the Option Holders in exchange for the cancellation of their Holdings Options and their rights as such Option Holders pursuant to Section 2.13 shall be subject to adjustment as specified in Section 2.13(e).
Merger Consideration; Effect on Capital Stock. The consideration --------------------------------------------- (hereinafter referred to as the "Merger Consideration") to be provided by Splash -------------------- and Merger Sub in exchange for all outstanding Company Capital Stock shall be, subject to adjustment as set forth in Section 1.13 below and subject to the provisions of Section 1.8 and Article VIII hereof, $30,000,000, payable in cash and/or shares of Splash Common Stock at the election of the Company's stockholders as provided in Sections 1.6 and 1.
