Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down. (b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPAC, Pubco and the Exchange Agent will enter into an exchange agent agreement, and at or prior to the Effective Time, Pubco will issue to the SPAC Securities Holders the SPAC Merger Consideration to be issued pursuant to Section 1.5. (c) After the Closing, Pubco will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to such SPAC Securities Holders (and Pubco will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Ordinary Shares equal to SPAC Merger Consideration. (d) Any SPAC Merger Consideration that is to be issued to SPAC Securities Holders under this Agreement will be issued directly to the registered SPAC Securities Holders, provided that with regard to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from the Sponsor pursuant to the Sponsor Stock Purchase Agreement, Qiantu Motor USA Inc. or its designee shall be issued directly the corresponding portion of the SPAC Merger Consideration.
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Samples: Agreement and Plan of Merger (Mountain Crest Acquisition Corp. IV), Merger Agreement (Mountain Crest Acquisition Corp. IV)
Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPACCompany, Pubco Parent and the Exchange Agent will enter into an exchange agent agreementagreement (the “Exchange Agent Agreement”), and at or prior to the Effective Time, Pubco will issue Parent shall make available to the SPAC Securities Holders Exchange Agent the SPAC Merger Consideration to be issued paid in respect of the Company Shares pursuant to Section 1.51.02(b).
(cb) After the Closing, Pubco promptly following delivery by a Company Shareholder (other than any Person who was a registered holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time, solely with respect to such Excluded Shares or Dissenting Shares) to the Exchange Agent of a duly completed and executed letter of transmittal in a form mutually agreeable to the Parties (a “Letter of Transmittal”) and, if the Company Shares of such Company Shareholders are certificated, the share certificates representing such Company Shares, subject to the satisfaction of any other conditions to be met as set forth in the Letter of Transmittal, Parent will promptly issue and allot, credited as fully paid(i) issue, or cause to be issued and allotted, credited as fully paidissued, to the Depositary Bank for the benefit of such SPAC Securities Holders Company Shareholder (and Pubco Parent will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Parent Ordinary Shares equal to SPAC the Per Share Merger Consideration multiplied by the number of Company Shares registered in the name of by such Company Shareholder immediately prior to the Effective Time (the “Share Merger Consideration”) and (ii) issue, or cause to be issued, to such Company Shareholder (and Parent will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Parent ADSs equal to the Share Merger Consideration multiplied by the ADS Exchange Rate (the “Merger Consideration”). Any portion of the Merger Consideration that remains undistributed to the Company Shareholders on the date that is one (1) year after the Effective Time will be delivered to Parent upon demand, and any holders of Company Shares that were issued and outstanding immediately prior to the Merger who have not theretofore surrendered or transferred their certificates representing such Company Shares for exchange pursuant to this Section 1.07 will thereafter look for payment of the Merger Consideration payable in respect of the Company Shares represented by such certificates solely to Parent (subject to abandoned property, escheat or similar Laws). Any portion of the Merger Consideration remaining unclaimed by the Company Shareholders three (3) years after the Closing Date (or if earlier, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) will become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dc) Any SPAC Merger Consideration that is to be issued to SPAC Securities Holders Company Shareholders under this Agreement will be issued directly to registered Company Shareholders in accordance with the registered SPAC Securities Holdersinstructions specified by such holder in its Letter of Transmittal. In no event shall any fractional shares of Share Merger Consideration or fractional interest of Merger Consideration be issued under this Agreement (with any fractional Parent Ordinary Share, provided in the case of the Share Merger Consideration, and, thereafter, any fractional Parent ADS, in the case of the Merger Consideration, that with regard would otherwise be issued rounded down to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from the Sponsor pursuant to the Sponsor Stock Purchase Agreementnearest whole Parent Ordinary Share and Parent ADS, Qiantu Motor USA Inc. or its designee shall be issued directly the corresponding as applicable). If any portion of the SPAC Merger Consideration is to be issued to a Person other than the Person in whose name the relevant Company Shares were registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such Company Shares shall have been permitted in accordance with the terms of the Company’s Governing Documents, as in effect immediately prior to the Effective Time, (ii) the certificate of such Company Shares shall be properly endorsed or shall otherwise be in proper form for transfer, (iii) the recipient of such portion of the Merger Consideration, or the Person in whose name such portion of the Merger Consideration is issued, shall have already executed and delivered counterparts to such other documents as are reasonably deemed necessary by the Surviving Company or Parent, including, with respect to the Lock-Up Shareholders, the Lock-Up Agreement, and (iv) the Person requesting such delivery shall pay to the Parent any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such certificate of Company Shares or establish to the satisfaction of the Surviving Company and Parent that such Tax has been paid or is not payable.
(d) None of Parent, the Exchange Agent, the Surviving Company nor their Affiliates will be liable to any Company Shareholder for any Merger Consideration paid to any public official pursuant to applicable abandoned property, escheat or similar Laws.
(e) In the event that any certificates representing Company Shares have been lost, stolen or destroyed, the Exchange Agent will issue, upon receipt of an affidavit of that fact by the holder thereof in form and substance satisfactory to the Exchange Agent, the Per Share Merger Consideration payable in respect thereof pursuant to Section 1.02. Parent or the Exchange Agent may, in its discretion and as a condition precedent to the payment of such Per Share Merger Consideration, require the owners of such lost, stolen or destroyed certificates to deliver a bond in such amount as it may direct as indemnity against any claim that may be made against Parent, the Surviving Company or the Exchange Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPAC, Pubco and the Exchange Agent Parent will enter into an exchange agent agreementagreement substantially in the form of Exhibit B attached hereto (the “Exchange Agent Agreement”), and at or prior to the Effective Time, Pubco will issue Parent shall make available to the SPAC Securities Holders Exchange Agent the SPAC Merger Parent Stock Consideration to be issued pursuant paid in respect of the Common Stock.
(b) After the Closing, promptly following delivery to Section 1.5the Exchange Agent of a duly completed and executed letter of transmittal and certificates representing shares of Common Stock or Preferred Stock, as applicable, along with a properly completed Internal Revenue Service Form W-9 (or if applicable, the appropriate Internal Revenue Service Form W-8), substantially in the form of Exhibit C attached hereto (a “Letter of Transmittal”), the Exchange Agent will (and Parent will direct the Exchange Agent to) promptly issue to each Common Stockholder (other than any Person who was a record holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time) that delivers a duly executed and completed Letter of Transmittal the number of shares of Parent Common Stock equal to the Per Common Share Closing Merger Consideration multiplied by the number of shares of Common Stock held of record by such Common Stockholder immediately prior to the Effective Time. Any portion of the Closing Aggregate Merger Consideration remaining unclaimed by the Stockholders three (3) years after the Closing Date (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) will become, to the extent permitted by applicable Law, the property of the Surviving Company free and clear of any claims or interest of any Person previously entitled thereto.
(c) After With respect to the ClosingEarnout Merger Consideration, Pubco promptly following the determination of the number of 2017 Earnout Shares, 2018 Earnout Shares or 2019 Earnout Shares, as applicable, payable (if any) pursuant to Annex I hereto, the Exchange Agent will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to such SPAC Securities Holders also (and Pubco Parent will direct the Exchange Agent to take all necessary action also) issue to each Common Stockholder (other than any Person who was a record holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time) that has delivered a duly executed and effect the same) completed Letter of Transmittal, the number of Pubco Class A Ordinary Shares shares of Parent Common Stock equal to SPAC the Per Common Share Earnout Merger ConsiderationConsideration multiplied by the number of shares of Common Stock held of record by such Common Stockholder immediately prior to the Effective Time. Any portion of the Earnout Merger Consideration (to the extent payable pursuant to this Agreement and Annex I hereto) remaining unclaimed by the Common Stockholders three (3) years after the date after the applicable shares of Parent Common Stock is required to be issued pursuant to Annex I hereto (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) will become, to the extent permitted by applicable Law, the property of the Surviving Company free and clear of any claims or interest of any Person previously entitled thereto.
(d) Any SPAC Merger Parent Stock Consideration that is to be issued to SPAC Securities Holders a Stockholder under this Agreement will be issued directly to such Stockholder of record in accordance with the registered SPAC Securities Holders, provided instructions specified by such holder in its Letter of Transmittal. In no event shall any fractional shares of Parent Stock Consideration be issued under this Agreement (with any fractional share that with regard would otherwise be issued rounded to the 200,000 nearest whole share; provided, however, that in the event such rounding to the nearest whole share would result in the aggregate number of shares of SPAC Parent Common Stock purchased by Qiantu Motor USA Inc. from being issued to the Sponsor Stockholders under this Agreement being greater or less than the aggregate number of shares of Parent Common Stock equal to the Parent Stock Consideration, then one or more fractional shares that may otherwise be issued to one or more Stockholders may be rounded as necessary using such alternative rounding methodology as mutually agreed upon between the Stockholder Representative and Parent to result in the aggregate number of shares of Parent Common Stock being issued to the Stockholders under this Agreement being equal to the Parent Stock Consideration).
(e) None of Parent, the Exchange Agent, the Surviving Company nor their Affiliates will be liable to any Stockholder for any Parent Stock Consideration paid to any public official pursuant to the Sponsor Stock Purchase Agreementapplicable abandoned property, Qiantu Motor USA Inc. escheat or its designee shall be issued directly the corresponding portion of the SPAC Merger Considerationsimilar Laws.
Appears in 1 contract
Samples: Merger Agreement (Hennessy Capital Acquisition Corp II)
Payment Methodology. (a) Immediately after The Parties recognize that amounts payable under this Article I, from funds released from the Reorganization Adjustment Escrow Accounts or pursuant to Section 6.07 to any Employee Restricted Stockholder with respect to his or her shares of Restricted Stock for which an election under Section 83(b) of the Code has not been filed (including distributions of any portion of the Reimbursement Fund Amount) (collectively, “Employee Restricted Stock Proceeds”) may be subject to withholding, other payroll deductions and, solely with respect to the Per Share Common Stock Merger Consideration, amounts to be held back in respect of indebtedness of such Employee Restricted Stockholder due to the Company as of the Closing. Accordingly, Pubco shall to facilitate such payments, the Exchange Agent will promptly deliver to the Surviving Company any Employee Restricted Stock Proceeds (and an amount equal to the employer’s share of Taxes applicable to payment thereof), a listing of the Employee Restricted Stockholders who are to receive a portion of such Employee Restricted Stockholders Proceeds and the pre-withholding amounts due to each (each, an “Employee Restricted Stock Proceeds Request Notice”). Upon receipt of an Employee Restricted Stock Proceeds Request Notice and the related Employee Restricted Stock Proceeds, the Surviving Company will make, on the next regular payroll date (but in any event within three Business Days of the Closing with respect to payments of the Per Common Share Closing Cash Consideration and the Per Common Share Parent Stock Consideration), the payments requested in such notice through the Surviving Company’s payroll system or cause its registered office provider such requested payments to register be made through the Pubco Ordinary Shares in payroll system of the register of members of Pubco Group Company that employs each such Person. Payments made to Employee Restricted Stockholders in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares the foregoing will be issued as part net of withholding, other normal payroll deductions and, solely with respect to the Company Per Share Common Stock Merger Consideration, and instead any the amount of indebtedness of such fractional share that would otherwise be issued will be rounded Employee Restricted Stockholder due to the nearest whole share, with a stockholder’s portion Company as of the Company Merger Consideration that would result Closing in a fractional share satisfaction of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding downsuch indebtedness.
(b) Prior Any Common Stock Merger Consideration that is payable to a Restricted Stockholder that is not an Employee Restricted Stockholder in respect of shares of Restricted Stock or to an Employee Restricted Stockholder in respect to shares of Restricted Stock for which an election under Section 83(b) of the Code has been filed will be paid directly to such holder (to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable account and pursuant to the Company and SPACwire transfer instructions specified by such Restricted Stockholder in its Letter of Transmittal) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPAC, Pubco and the Exchange Agent will enter into an exchange agent agreement, and at or prior to the Effective Time, Pubco will issue to the SPAC Securities Holders the SPAC Merger Consideration to be issued pursuant to Section 1.5.
(c) After the Closing, Pubco will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to each time any such SPAC Securities Holders amount becomes payable (and Pubco Parent will direct the Exchange Agent to take all necessary action make such payment).
(c) Except as provided in Section 1.11(a) or (b), Common Stock Merger Consideration or amounts payable pursuant to record Section 6.07 that become payable to a Stockholder will be paid directly to such holder (to the account and effect pursuant to the samewire transfer instructions specified by such holder in its Letter of Transmittal) by the number of Pubco Class A Ordinary Shares equal Exchange Agent at each time any such amount becomes payable (and Parent will direct the Exchange Agent to SPAC Merger Considerationmake such payment).
(d) Any SPAC Merger Consideration that is post-Closing payment to be issued made by Parent to SPAC Securities Holders the Stockholder Representative under this Agreement will be issued directly made by wire transfer of immediately available funds to the registered SPAC Securities Holders, provided that with regard to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from the Sponsor an account pursuant to wire transfer instructions given to Parent by the Sponsor Stock Purchase Agreement, Qiantu Motor USA Inc. or its designee shall be issued directly the corresponding portion of the SPAC Merger ConsiderationStockholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Hennessy Capital Acquisition Corp II)
Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPAC, Pubco Parent and the Exchange Agent will enter into an exchange agent agreementagreement substantially in the form of Exhibit D attached hereto (the “Exchange Agent Agreement”), and at or prior to the Effective Time, Pubco will issue Parent shall make available to the SPAC Securities Holders Exchange Agent the SPAC Merger Consideration Shares to be issued paid in respect of the Company Stock pursuant to Section 1.51.08(b).
(cb) After the Closing, Pubco promptly following delivery by a Company Stockholder (other than any Person who was a record holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time, solely with respect to such Excluded Shares or Dissenting Shares) to the Exchange Agent of a duly completed and executed letter of transmittal and certificates representing shares of Company Stock, along with a properly completed Internal Revenue Service Form W-9 (or if applicable, the appropriate Internal Revenue Service Form W-8 or Form W-8BEN), substantially in the form of Exhibit E attached hereto (a “Letter of Transmittal”), subject to the satisfaction of any other conditions to be met as set forth in the Letter of Transmittal, Parent will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to such SPAC Securities Holders Company Stockholder (and Pubco Parent will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Parent Ordinary Shares equal to SPAC the Estimated Per Share Closing Merger Consideration multiplied by the number of shares of Company Stock held of record by such Company Stockholder (less such Company Stockholder’s Pro Rata Share of the Escrow Shares) immediately prior to the Effective Time. Any portion of the Closing Parent Share Consideration remaining unclaimed by the Company Stockholders three (3) years after the Closing Date (or if earlier, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) will become, to the extent permitted by applicable Law, the property of the Surviving Company free and clear of any claims or interest of any Person previously entitled thereto.
(c) With respect to the Earnout Parent Share Consideration, promptly following the determination that the Earnout Parent Share Consideration is payable pursuant to Annex I hereto, Parent will (i) cause to be transferred to the Exchange Agent from the Earnout Escrow Account pursuant to Section 1.10(c) the Earnout Parent Share Consideration (less the Earnout Escrow Shares) and (ii) cause the Exchange Agent to disburse to each Company Stockholder (other than any Person who was a record holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time) that has delivered a duly executed and completed Letter of Transmittal, the number of Parent Ordinary Shares equal to the Per Share Earnout Merger Consideration (less each such Company Stockholder’s Pro Rata Share of the Earnout Escrow Shares) multiplied by the number of shares of Company Stock held of record by such Company Stockholder immediately prior to the Effective Time (and Parent and the Stockholder Representative will deliver such instructions to the Escrow Agent and the Exchange Agent as are necessary to effect the same, and will direct the Exchange Agent to take all necessary action to record and effect the same). Any portion of the Earnout Parent Share Consideration (to the extent payable pursuant to this Agreement and Annex I hereto) remaining unclaimed by the Company Stockholders three (3) years after the date after the applicable Parent Ordinary Shares are required to be released from the Earnout Escrow Account pursuant to Annex I hereto (or if earlier, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) will become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(d) Any SPAC Subject to Section 1.10(a), any Merger Consideration Share that is to be issued to SPAC Securities Holders a Company Stockholder under this Agreement will be issued directly to such Company Stockholder of record in accordance with the registered SPAC Securities Holders, provided instructions specified by such holder in its Letter of Transmittal. In no event shall any fractional shares of Merger Consideration Shares be issued under this Agreement (with any fractional share that with regard would otherwise be issued rounded to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from nearest whole share; provided, however, that in the Sponsor pursuant event such rounding to the Sponsor Stock Purchase Agreementnearest whole share would result in the aggregate number of Parent Ordinary Shares being issued to the Company Stockholders under this Agreement being greater or less than the aggregate number of Parent Ordinary Shares equal to the Merger Consideration Shares, Qiantu Motor USA Inc. then one or its designee shall more fractional shares that may otherwise be issued directly to one or more Company Stockholders may be rounded as necessary using such alternative rounding methodology as mutually agreed upon between the corresponding Stockholder Representative and Parent to result in the aggregate number of Parent Ordinary Shares being issued to the Company Stockholders under this Agreement being equal to the Merger Consideration Shares). If any portion of the SPAC Merger ConsiderationConsideration Shares is to be issued to a Person other than the Person in whose name the relevant Company Stock were registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such Company Stock shall have been permitted in accordance with the terms of the Company Governing Documents, as in effect immediately prior to the Effective Time, (ii) such Company Stock certificate shall be properly endorsed or shall otherwise be in proper form for transfer and, (iii) the recipient of such portion of the Merger Consideration Shares, or the Person in whose name such portion of the Merger Consideration Shares are issued, shall have already executed and delivered counterparts to the Lock-Up Agreement in substantially the form attached hereto as Exhibit F (the “Lock-Up Agreement”), Registration Rights Agreement in substantially the formed attached hereto as Exhibit G (the “Registration Rights Agreement”), and such other documents as are reasonably deemed necessary by the Surviving Company or Parent and (iv) the Person requesting such delivery shall pay to the Parent any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Company Stock Certificate or establish to the satisfaction of the Surviving Company and Parent that such Tax has been paid or is not payable.
(e) None of Parent, the Exchange Agent, the Surviving Company nor their Affiliates will be liable to any Company Stockholder for any Merger Consideration Shares paid to any public official pursuant to applicable abandoned property, escheat or similar Laws.
Appears in 1 contract
Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPACCompany, Pubco Parent and the Exchange Agent will enter into an exchange agent agreementagreement (the “Exchange Agent Agreement”), and at or prior to the Effective Time, Pubco will issue Parent shall make available to the SPAC Securities Holders Exchange Agent the SPAC Merger Consideration to be issued paid in respect of the Company Shares pursuant to Section 1.51.02(b).
(cb) After the Closing, Pubco promptly following delivery by a Company Shareholder (other than any Person who was a registered holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time, solely with respect to such Excluded Shares or Dissenting Shares) to the Exchange Agent of a duly completed and executed letter of transmittal in a form mutually agreeable to the Parties (a “Letter of Transmittal”) and, if the Company Shares of such Company Shareholders are certificated, the share certificates representing such Company Shares, subject to the satisfaction of any other conditions to be met as set forth in the Letter of Transmittal, Parent will promptly issue and allot, credited as fully paid(i) issue, or cause to be issued and allotted, credited as fully paidissued, to the Depositary Bank for the benefit of such SPAC Securities Holders Company Shareholder (and Pubco Parent will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Parent Ordinary Shares equal to SPAC the Per Share Merger Consideration multiplied by the number of Company Shares registered in the name of by such Company Shareholder immediately prior to the Effective Time (the “Share Merger Consideration”) and (ii) issue, or cause to be issued, to such Company Shareholder (and Parent will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Parent ADSs equal to the Share Merger Consideration multiplied by the ADS Exchange Rate (the “Merger Consideration”). Any portion of the Merger Consideration that remains undistributed to the Company Shareholders on the date that is one (1) year after the Effective Time will be delivered to Parent upon demand, and any holders of Company Shares that were issued and outstanding immediately prior to the Merger who have not theretofore surrendered or transferred their certificates representing such Company Shares for exchange pursuant to this Section 1.07 will thereafter look for payment of the Merger Consideration payable in respect of the Company Shares represented by such certificates solely to Parent (subject to abandoned property, escheat or similar Laws). Any portion of the Merger Consideration remaining unclaimed by the Company Shareholders three (3) years after the Closing Date (or if earlier, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) will become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dc) Any SPAC Merger Consideration that is to be issued to SPAC Securities Holders Company Shareholders under this Agreement will be issued directly to registered Company Shareholders in accordance with the registered SPAC Securities Holdersinstructions specified by such holder in its Letter of Transmittal. In no event shall any fractional shares of Share Merger Consideration or fractional interest of Merger Consideration be issued under this Agreement (with any fractional Parent Ordinary Share, provided in the case of the Share Merger Consideration, and, thereafter, any fractional Parent ADS, in the case of the Merger Consideration, that with regard would otherwise be issued rounded down to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from the Sponsor pursuant to the Sponsor Stock Purchase Agreementnearest whole Parent Ordinary Share and Parent ADS, Qiantu Motor USA Inc. or its designee shall be issued directly the corresponding as applicable). If any portion of the SPAC Merger Consideration is to be issued to a Person other than the Person in whose name the relevant Company Shares were registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such Company Shares shall have been permitted in accordance with the terms of the Company’s Governing Documents, as in effect immediately prior to the Effective Time, (ii) the certificate of such Company Shares shall be properly endorsed or shall otherwise be in proper form for transfer, (iii) the recipient of such portion of the Merger Consideration, or the Person in whose name such portion of the Merger Consideration is issued, shall have already executed and delivered counterparts to such other documents as are reasonably deemed necessary by the Surviving Company or Parent, including, with respect to the Lock-Up Shareholders, the Lock-Up Agreement, and TABLE OF CONTENTS (iv) the Person requesting such delivery shall pay to the Parent any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such certificate of Company Shares or establish to the satisfaction of the Surviving Company and Parent that such Tax has been paid or is not payable.
(d) None of Parent, the Exchange Agent, the Surviving Company nor their Affiliates will be liable to any Company Shareholder for any Merger Consideration paid to any public official pursuant to applicable abandoned property, escheat or similar Laws.
(e) In the event that any certificates representing Company Shares have been lost, stolen or destroyed, the Exchange Agent will issue, upon receipt of an affidavit of that fact by the holder thereof in form and substance satisfactory to the Exchange Agent, the Per Share Merger Consideration payable in respect thereof pursuant to Section 1.02. Parent or the Exchange Agent may, in its discretion and as a condition precedent to the payment of such Per Share Merger Consideration, require the owners of such lost, stolen or destroyed certificates to deliver a bond in such amount as it may direct as indemnity against any claim that may be made against Parent, the Surviving Company or the Exchange Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the SPAC, the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPAC, Pubco and the Exchange Agent will enter into an exchange agent agreementagreement (the “Exchange Agent Agreement”), and at or prior to the Effective Time, Pubco the Company will issue to the SPAC Securities Holders the SPAC Merger Consideration to be issued in respect of the SPAC Shares pursuant to Section 1.51.02(b).
(cb) After the Closing, Pubco Closing the Company will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to such SPAC Securities Holders Shareholder (and Pubco the Company will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Ordinary Shares equal to the Per Share Merger Consideration multiplied by the number of SPAC Shares registered in the name of by such SPAC Shareholder immediately prior to the Effective Time (the “Merger Consideration”).
(dc) Any SPAC Merger Consideration that is to be issued to SPAC Securities Holders Shareholders under this Agreement will be issued directly to the registered SPAC Securities Holders, provided that with regard to the 200,000 Shareholders. Any fractional shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from the Sponsor pursuant to the Sponsor Stock Purchase Per Share Merger Consideration or fractional interest of Merger Consideration which would be issued under this Agreement, Qiantu Motor USA Inc. or its designee shall be issued directly handled in accordance with the corresponding Amended and Restated Memorandum and Articles of Association. If any portion of the Merger Consideration is to be issued to a Person other than the Person in whose name the relevant SPAC Shares were registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such SPAC Shares shall have been permitted in accordance with the terms of the SPAC’s Governing Documents, as in effect immediately prior to the Effective Time, (ii) the certificate of such SPAC Shares shall be properly endorsed or shall otherwise be in proper form for transfer, (iii) the recipient of such portion of the Merger Consideration, or the Person in whose name such portion of the Merger Consideration is issued, shall have already executed and delivered counterparts to such other documents as are reasonably deemed necessary by the Surviving Company or the Company, and (iv) the Person requesting such delivery shall pay to the Company any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such certificate of SPAC Shares or establish to the satisfaction of the Surviving Company and the Company that such Tax has been paid or is not payable.
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Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPAC, Pubco and the Exchange Agent will enter into an exchange agent agreement, and at At or prior to the Effective Time, Pubco will issue Parent shall make available to the SPAC Securities Holders Exchange Agent the SPAC Closing Merger Consideration Shares (defined in Section 13.01) to be issued paid in respect of the Company Common Stock and the Gamma Earnout Consideration Shares (defined in Section 13.01) to be paid in respect of the Gamma Common Stock, pursuant to Section 1.51.08(b).
(cb) After the Closing, Pubco promptly following delivery by a Company Stockholder (other than any Person who was a record holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time, solely with respect to such Excluded Shares or Dissenting Shares) to the Exchange Agent of certificates representing shares of Company Common Stock, along with a properly completed Internal Revenue Service Form W-9 (or if applicable, the appropriate Internal Revenue Service Form W-8 or Form W-8BEN), subject to the satisfaction of any other conditions as applicable, Parent will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to such SPAC Securities Holders Company Stockholder (and Pubco Parent will direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Ordinary Parent Common Shares equal to SPAC the Sigma Exchange Ratio or Gamma Exchange Ratio, as applicable, multiplied by the number of shares of Sigma Common Stock or Gamma Common Stock, as applicable, held of record by such Company Stockholder immediately prior to the Effective Time. Any portion of the Closing Merger ConsiderationConsideration Shares remaining unclaimed by the Company Stockholders three (3) years after the Closing Date (or if earlier, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity (defined in Section 13.01)) will become, to the extent permitted by applicable Law, the property of the applicable Surviving Company free and clear of any claims or interest of any Person previously entitled thereto.
(c) With respect to the Gamma Earnout Consideration Shares, Parent will (i) at the Closing, cause to be deposited with the Escrow Agent (as defined in Section 1.09) the Gamma Earnout Consideration Shares (less any portion of the Gamma Earnout Consideration Shares that becomes vested and deliverable to Gamma Stockholders at the Closing if any Triggering Event set forth in Annex I has been achieved prior to the Closing) in the Earnout Escrow Account pursuant to Section 1.09 and (ii) cause the Escrow Agent to disburse to each Gamma Stockholder the applicable portion of the Gamma Earnout Consideration Shares pursuant to Section 1.09 and Annex I hereto (other than with respect to Gamma Excluded Shares or Gamma Dissenting Shares immediately prior to the Effective Time) (and Parent and the Stockholder Representative will deliver such instructions to the Escrow Agent and the Exchange Agent as are necessary to effect the same, and will direct the Exchange Agent to take all necessary action to record and effect the same). Notwithstanding the foregoing, to the extent any Triggering Event set forth in Annex I has been achieved prior to the Closing, the applicable portion of the Gamma Earnout Consideration Shares shall become vested and be delivered directly to Gamma Stockholders at the Closing.
(d) Any SPAC Closing Merger Consideration Share that is to be issued to SPAC Securities Holders a Company Stockholder under this Agreement will be issued directly to such Company Stockholder of record in accordance with the registered SPAC Securities Holders, provided instructions specified by such holder in a form as is required by the Exchange Agent. In no event shall any fractional shares of Closing Merger Consideration Shares be issued under this Agreement (with any fractional share that with regard would otherwise be issued rounded to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from nearest whole share; provided, however, that in the Sponsor pursuant event such rounding to the Sponsor Stock Purchase Agreementnearest whole share would result in the aggregate number of Parent Common Shares being issued to the Company Stockholders under this Agreement being greater or less than the aggregate number of Parent Common Shares equal to the Closing Merger Consideration Shares, Qiantu Motor USA Inc. then one or its designee shall more fractional shares that may otherwise be issued directly to one or more Company Stockholders may be rounded as necessary using such alternative rounding methodology as mutually agreed upon between the corresponding Stockholder Representative and Parent to result in the aggregate number of Parent Common Shares being issued to the Company Stockholders under this Agreement being equal to the Closing Merger Consideration Shares). If any portion of the SPAC Closing Merger ConsiderationConsideration Shares is to be issued to a Person other than the Person in whose name the relevant Company Common Stock was registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such Company Common Stock shall have been permitted in accordance with the terms of the certificate of incorporation and bylaws of such Company, as in effect immediately prior to the Effective Time, (ii) such Company Common Stock certificate shall be properly endorsed or shall otherwise be in proper form for transfer and, (iii) the recipient of such portion of the Closing Merger Consideration Shares, or the Person in whose name such portion of the Closing Merger Consideration Shares are issued, shall have already executed and delivered counterparts to the Lock-Up Agreement in substantially the form attached hereto as Exhibit D (the “Lock-Up Agreement”) (if required pursuant to Section 8.01(f)), and such other documents as are reasonably deemed necessary by the Surviving Companies or Parent and (iv) the Person requesting such delivery shall pay to Parent any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Company Common Stock Certificate or establish to the satisfaction of the Surviving Companies and Parent that such Tax has been paid or is not payable.
(e) None of Parent, the Exchange Agent, the Surviving Companies nor their Affiliates will be liable to any Company Stockholder for any Closing Merger Consideration Shares or Gamma Earnout Consideration Shares paid to any public official pursuant to applicable abandoned property, escheat or similar Laws (defined in Section 13.01).
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Payment Methodology. (a) Immediately after the Reorganization Closing, Pubco shall cause its registered office provider to register the Pubco Ordinary Shares in the register of members of Pubco in accordance with Section 2.1. No certificates or scrip representing fractional shares of Pubco Ordinary Shares will be issued as part of the Company Merger Consideration, and instead any such fractional share that would otherwise be issued will be rounded to the nearest whole share, with a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of 0.50 or greater rounding up and a stockholder’s portion of the Company Merger Consideration that would result in a fractional share of less than 0.50 rounding down.
(b) Prior to the Effective Time, Continental Stock Transfer & Trust Company (“Continental”) (or such other Person reasonably acceptable to the Company and SPAC) shall be appointed and authorized to act as exchange agent in connection with the transactions contemplated by Section 1.5 (the “Exchange Agent”) and SPACCompany, Pubco Parent and the Exchange Agent will shall enter into an exchange agent agreementagreement (the “Exchange Agent Agreement”), and at or prior to the Effective Time, Pubco will issue Parent shall make available to the SPAC Securities Holders Exchange Agent the SPAC Merger Consideration to be issued paid in respect of (i) the Company Shares pursuant to Section 1.51.02(b) and (ii) the Company Rights pursuant to Section 1.02(d) (the “Rights Shares”).
(cb) After the Closing, Pubco will promptly issue following delivery by a Company Shareholder (other than any Person who was a registered holder of Excluded Shares or Dissenting Shares immediately prior to the Effective Time, solely with respect to such Excluded Shares or Dissenting Shares) to the Exchange Agent of a duly completed and allotexecuted letter of transmittal in a form mutually agreeable to the Parties (a “Letter of Transmittal”) and, credited if the Company Shares of such Company Shareholders are certificated, the share certificates representing such Company Shares, subject to the satisfaction of any other conditions to be met as fully paidset forth in the Letter of Transmittal, Parent shall promptly (i) issue, or cause to be issued and allotted, credited as fully paidissued, to such SPAC Securities the Depositary Bank for the benefit of the Company Shareholders and Company Right Holders (and Pubco will Parent shall direct the Exchange Agent to take all necessary action to record and effect the same) the number of Pubco Class A Parent Ordinary Shares equal to SPAC (A) the Per Share Merger Consideration multiplied by the number of Company Shares registered in the name of such Company Shareholder immediately prior to the Effective Time (the “Share Merger Consideration”) plus (B) the number of Rights Shares determined pursuant to Section 1.02(d) registered in the name of all the Company Right Holders immediately prior to the Effective Time (the “Rights Merger Consideration”) and (ii) issue, or cause to be issued, to such Company Shareholders and Company Right Holders (and Parent shall direct the Exchange Agent to take all necessary action to record and effect the same) the number of Parent ADSs equal to the sum of (A) the Share Merger Consideration multiplied by the ADS Exchange Rate plus (B) the Rights Merger Consideration (the “Merger Consideration”). Any portion of the Merger Consideration that remains undistributed to the Company Shareholders on the date that is one (1) year after the Effective Time shall be delivered to Parent upon demand, and any holders of Company Shares that were issued and outstanding immediately prior to the Merger who have not theretofore surrendered or transferred their certificates representing such Company Shares for exchange pursuant to this Section 1.07 shall thereafter look for payment of the Merger Consideration payable in respect of the Company Shares represented by such certificates solely to Parent (subject to abandoned property, escheat or similar Laws). Any portion of the Merger Consideration remaining unclaimed by the Company Shareholders three (3) years after the Closing Date (or if earlier, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(dc) Any SPAC Merger Consideration that is to be issued to SPAC Securities Holders Company Shareholders under this Agreement will shall be issued directly to registered Company Shareholders in accordance with the registered SPAC Securities Holdersinstructions specified by such holder in its Letter of Transmittal. In no event shall any fractional shares of Share Merger Consideration or fractional interest of Merger Consideration be issued under this Agreement (with any fractional Parent Ordinary Share, provided in the case of the Share Merger Consideration, and, thereafter, any fractional Parent ADS, in the case of the Merger Consideration, that with regard would otherwise be issued rounded down to the 200,000 shares of SPAC Common Stock purchased by Qiantu Motor USA Inc. from the Sponsor pursuant to the Sponsor Stock Purchase Agreementnearest whole Parent Ordinary Share and Parent ADS, Qiantu Motor USA Inc. or its designee shall be issued directly the corresponding as applicable). If any portion of the SPAC Merger Consideration is to be issued to a Person other than the Person in whose name the relevant Company Shares or Company Rights were registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such Company Shares or Company Rights shall have been permitted in accordance with the terms of the Company’s Governing Documents, as in effect immediately prior to the Effective Time, (ii) the certificate of such Company Shares or Company Rights shall be properly endorsed or shall otherwise be in proper form for transfer, (iii) the recipient of such portion of the Merger Consideration, or the Person in whose name such portion of the Merger Consideration is issued, shall have already executed and delivered counterparts to such other documents as are reasonably deemed necessary by the Surviving Company or Parent, including, with respect to the Lock-Up Shareholders, the Lock-Up Agreements, and (iv) the Person requesting such delivery shall pay to the Parent any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such certificate of Company Shares or Company Rights or establish to the satisfaction of the Surviving Company and Parent that such Tax has been paid or is not payable.
(d) None of Parent, the Exchange Agent, the Surviving Company nor their Affiliates shall be liable to any Company Shareholder for any Merger Consideration paid to any public official pursuant to applicable abandoned property, escheat or similar Laws.
(e) In the event that any certificates representing Company Shares have been lost, stolen or destroyed, the Exchange Agent shall issue, upon receipt of an affidavit of that fact by the holder thereof in form and substance satisfactory to the Exchange Agent, the Merger Consideration payable in respect thereof pursuant to Section 1.02. Parent or the Exchange Agent may, in its discretion and as a condition precedent to the payment of such Merger Consideration, require the owners of such lost, stolen or destroyed certificates to deliver a bond in such amount as it may direct as indemnity against any claim that may be made against Parent, the Surviving Company or the Exchange Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.
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