Payment of Merger Consideration. (a) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, and the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, to be issued to such Company Shareholder at the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments. (b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send to each Company Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange (a “Company Letter of Transmittal”). (c) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares. (d) Each SPAC Shareholder shall be entitled to receive such number of PubCo Ordinary Shares as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Merger Effective Time. (e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate). (f) If any PubCo Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Certificate, or establish to the satisfaction of PubCo that such Tax has been paid or is not payable. (g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement. (h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)
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Payment of Merger Consideration. (a) At least three (3) Business Days the Effective Time, the Surviving Corporation shall deliver to each Eligible Holder who has, prior to the Closing Datedate thereof, delivered a duly executed and completed letter of transmittal and has surrendered the applicable certificate(s) representing its Company Shares an aggregate amount in cash equal to (i) the product of the number of Company Shares represented by such certificate(s) multiplied by the Per Share Merger Consideration, (ii) less any applicable income or employment tax withholding, by wire transfer of immediately available funds (or, at the request of an Eligible Holder, by check).
(b) At or prior to the Closing, the Company Surviving Corporation and the Paying Agent shall prepare and deliver to SPAC enter into a statement paying agent agreement (the “Company Closing StatementPaying Agent Agreement”) setting forth ), in good faith as a form reasonably agreed to by the parties hereto. At the Effective Time, the Surviving Corporation shall deliver to the Paying Agent an aggregate amount in cash equal to the product of the Closing Date: (ai) the aggregate number of Company Shares (x) in respect of which a duly executed and completed letter of transmittal has not been received by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) or whose certificates have not been surrendered to the Company’s calculation , as of the Effective Time and (y) which are not Appraisal Shares or shares canceled pursuant to Section 2.03(d), multiplied by (ii) the Per Share Equity Value; Merger Consideration. Following the Effective Time, the Paying Agent shall deliver to each Eligible Holder who has not, as of the Effective Time, delivered a duly executed and completed letter of transmittal or surrendered the applicable certificate(s) representing its Company Shares an aggregate amount in cash equal to (di) the Company’s calculation product of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned represented by such Company Shareholder as certificate(s) multiplied by the Per Share Merger Consideration, (ii) less any applicable income or employment tax withholding, by wire transfer of immediately prior to available funds (or, at the Acquisition Merger Effective Timerequest of an Eligible Holder, and the number by check) immediately following surrender of PubCo Class A Ordinary certificate(s) evidencing such Company Shares (or PubCo Class B Ordinary Sharesa lost certificate affidavit and, as if applicable, to be issued to such Company Shareholder at the Acquisition Closing; bond) and (f) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after upon delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with a duly executed and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send to each Company Shareholder a completed letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange (a “Company Letter of Transmittal”)transmittal.
(c) Notwithstanding any other provision In the event of this Section 4.4a transfer of ownership of Company Shares that is not registered in the transfer records of the Company, any obligation on PubCo under this Agreement payment may be made with respect to issue PubCo Ordinary Shares such shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly a transferee if the certificate representing such shares is presented to the holders entitled thereto Company, accompanied by entering all documents required to evidence and effect such holders on the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder shall be entitled transfer and to receive such number of PubCo Ordinary Shares as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Merger Effective Time.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate).
(f) If evidence that any PubCo Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the applicable stock transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo any transfer taxes or other Taxes taxes required as a result of such delivery payment to a Person other than the registered holder of such Shareholder CertificateCommon Stock have been paid. For the avoidance of doubt, or establish to the satisfaction of PubCo any such transferee that such Tax has been paid or is not payablesatisfies these requirements shall be an Eligible Holder.
(gd) Notwithstanding anything in this Agreement to the contrary contained hereincontrary, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the each Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were Share issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid that is held by any holder who is entitled to the holders of any Company Shares that were issued demand and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record properly demands appraisal of such Company Shares or SPAC Ordinary Shares Share (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)an
Appears in 1 contract
Payment of Merger Consideration. Immediately after the Effective Time, the Parent shall pay and deliver the Merger Consideration as follows:
(a) At The Parent shall direct its transfer agent to issue, in the name of each Company Stockholder, the number of shares of Parent Common Stock to be issued to each such Company Stockholder pursuant to the terms of this Agreement (as such number of shares are reflected on a certificate signed by a duly authorized officer of the Company and delivered by the Company to the Parent at least three (3) Business Days prior to before the Closing Date, the Company shall prepare which will set forth and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith be certified therein as true and accurate as of the Closing DateEffective Time: (ai) each Company Stockholder as of the aggregate number of Company Shares (by classes) issued and outstandingEffective Time; (bii) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned held by each such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, Stockholder; and (iii) the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, shares of Parent Common Stock to be issued to on conversion of the Company Shares held by each such Company Shareholder Stockholder at the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of Organizational Documents and this Agreement (such certificate, the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.“Allocation Certificate”));
(b) As a condition The Parent shall deliver to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send to each Company Shareholder a letter of transmittal its transfer agent for use in such exchange, in a form reasonably acceptable delivery to the Company and SPAC, a letter Stockholders the aggregate amount of transmittal cash sufficient to pay for use in such exchange (a “Company Letter fractional shares of Transmittal”Parent Common Stock calculated pursuant to Section 2.6(d).; and
(c) Notwithstanding any other provision Promptly after the Effective Time, Parent and the Surviving Corporation shall cause to be mailed, or if appropriate transmitted electronically, by the Parent’s transfer agent, acting as exchange agent, to each Person who was, at the Effective Time, a holder of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary record of Company Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares the Merger Consideration pursuant to this Agreement a customary and reasonable form of letter of transmittal (which shall specify that delivery shall be satisfied by PubCo issuing effected, and risk of loss and title to any certificates evidencing such PubCo Ordinary Company Shares directly (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the holders entitled thereto by entering such holders on the register of members maintained by PubCo exchange agent (or its share registrareffective affidavits of loss in lieu of such Certificates as set forth in below) and instructions for use in effecting the PubCo Ordinary surrender of the Certificates and of any uncertificated Company Shares entitled to receive Merger Consideration (“Uncertificated Shares.
”) pursuant to such letter of transmittal). Upon surrender to the exchange agent of a Certificate, or upon receipt of by the exchange agent of such evidence, if any, of transfer as the exchange agent may reasonably request in the case of a book-entry transfer of Uncertificated Shares, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, the holder of such Certificate (dor effective affidavits of loss in lieu of such Certificates as set forth below) Each SPAC Shareholder and the holder of such Uncertificated Shares shall be entitled to promptly receive in exchange therefor the Merger Consideration for each Company Share formerly evidenced by such number of PubCo Ordinary Shares as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Merger Effective Time.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Certificate or Uncertificated Shares, and such Certificate and transferred Uncertificated Shares so surrendered shall then be cancelled. The exchange agent will accept such Certificates and Uncertificated Shares upon compliance with such reasonable and customary terms and conditions as the case exchange agent may be, as calculated pursuant impose to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together cause an orderly exchange thereof in accordance with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”)normal exchange practices. Until so surrendered, each such Company Certificate shall represent outstanding Certificates and Uncertificated Shares will be deemed from and after the Acquisition Merger Effective Time for all purposes to evidence only the right to receive such number of PubCo Ordinary Sharesthe applicable Merger Consideration, as the case may bewithout interest thereon, as calculated payable in respect thereof pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by this Agreement. If payment of the Company Certificate).
(f) If any PubCo Ordinary Share Merger Consideration is to be delivered or issued made to a Person person other than the Person in whose name the surrendered Shareholder Certificate or Uncertificated Share is registered immediately prior to on the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicablestock transfer books of the Company, it shall be a condition to such delivery of payment that (i) the Certificate or Uncertificated Share so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person person requesting such delivery payment shall have paid to PubCo any all transfer or and other similar Taxes required as a result by reason of such delivery the payment of the Merger Consideration to a Person person other than the registered holder of such Shareholder Certificate, the Certificate or establish Uncertificated Share surrendered or shall have established to the reasonable satisfaction of PubCo the Surviving Corporation that such Tax has Taxes either have been paid or is are not payable.
(g) Notwithstanding anything applicable. The Merger Consideration paid in accordance with this Agreement upon the surrender for exchange of Certificates and Uncertificated Shares shall be deemed to have been paid in full satisfaction of all rights pertaining to the contrary contained herein, in the event that Company Shares theretofore represented by such Certificates and Uncertificated Shares. If any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu upon the making of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable and customary amount as the Surviving Corporation may require as indemnity of loss against claims that may be made against it with respect to such Certificate, the exchange agent will issue in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of exchange for such lost, stolen or destroyed Shareholder Certificate deliver a bond the Merger Consideration payable in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCorespect thereof, SPAC or the Surviving Company with respect pursuant to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)
Appears in 1 contract
Payment of Merger Consideration. (a) At least three Subject to compliance with Section 3.2(b), Parent shall pay to each Company Stockholder (3other than holders of Dissenting Shares) the Per Share Merger Consideration in respect of each share of Company Stock held in the aggregate amounts set forth next to each Company Stockholder’s name in the Payment and Allocation Schedule (as such Schedule is adjusted in accordance with the procedures set forth in Section 3.4(c)(iii)(A)). On the Closing Date, Parent shall deliver to each Company Stockholder (other than holders of Dissenting Shares) with respect to shares of Company Stock formerly represented by such holder’s Company Stock Certificates: (1) certificates representing the Per Share Stock Consideration multiplied by the number of shares of Company Stock owned by such Company Stockholder as set forth in the Payment and Allocation Schedule (rounded to the nearest whole share), issued in the names of and in the amounts specified by such Company Stockholder by written notice to Parent no later than two (2) Business Days prior to the Closing Date, the Company shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b2) the aggregate number by wire transfer of Company Total Sharesimmediately available United States funds, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, Cash Consideration multiplied by the number of shares of Company Shares Stock owned by such Company Shareholder Stockholder as of immediately set forth in the Payment and Allocation Schedule (rounded to the nearest xxxxx), to the account or accounts specified by such Company Stockholder by written notice to Parent no later than two (2) Business Days prior to the Acquisition Merger Effective Time, Closing Date; and (3) the Per Share Notes Consideration multiplied by the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, to be issued to shares of Company Stock owned by such Company Shareholder at Stockholder as set forth in the Acquisition Closing; Payment and Allocation Schedule, issued in the names of and in the amounts specified by such Company Stockholder by written notice to Parent no later than two (f2) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect Business Days prior to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such commentsDate.
(b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send to each Company Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange (a “Company Letter of Transmittal”).
(c) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder shall be entitled to receive such number of PubCo Ordinary Shares as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Execution Date, the Company shall mail a Letter of Transmittal, in a form to be reasonably agreed upon by the Company and Parent (which shall contain, among other things, customary investor representations from the Company Stockholders on which Parent may rely to issue the shares of Parent Common Stock and New Notes) (the “Letter of Transmittal”), to each Company Stockholder. Upon surrender of the Company Stock Certificate or Certificates representing the Company Stock held by each Company Stockholder, together with a duly completed and validly executed Letter of Transmittal at the Effective Time or thereafter, such Company Stockholder shall be entitled to receive, subject to the terms and conditions hereof, the Per Share Merger Consideration for each share of Company Stock represented by such Company Stock Certificates and Company Stock Certificates so surrendered shall forthwith be canceled. Until surrendered as contemplated by this Section 3.2(b), each Company Stock Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration for each share of Company Stock represented by such Company Stock Certificate. No interest will be paid or will accrue on the Per Share Merger Consideration payable upon surrender of any Company Stock Certificate.
(c) All Per Share Merger Consideration paid upon the surrender of Company Stock Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock previously represented by such Company Stock Certificates. At the close of business on the day on which the Effective Time occurs, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Stock that were outstanding immediately prior to the Effective Time. If, at any time after the Effective Time, Company Stock Certificates are presented to the Surviving Corporation or Parent for any reason, they shall be canceled and exchanged as provided in this Article III.
(d) In the event any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed, and the posting of a bond in such reasonable amount as Parent may direct, Parent shall pay the applicable Per Share Merger Consideration to be paid in respect of such shares of Company Stock formerly represented by such Company Stock Certificate to which such holder would be entitled pursuant to this Article III.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo If any portion of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Per Share Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate).
(f) If any PubCo Ordinary Share Consideration is to be delivered or issued paid to a Person other than the Person in whose name the surrendered Shareholder Company Stock Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicableregistered, it shall be a condition to such delivery payment that (i) in the case of Company Shares, the transfer of such Company Shares Stock Certificate shall have been permitted be properly endorsed or shall otherwise be in accordance with the terms of the Organizational Documents of the Company proper form for transfer and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery payment shall have paid pay to PubCo Parent any transfer or other Transfer Taxes required as a result of such delivery payment to a Person other than the registered holder of such Shareholder Certificate, Company Stock Certificate or establish to the reasonable satisfaction of PubCo Parent that such Tax has been paid or is not payable.
(gf) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement Effective Time with respect to PubCo Ordinary Shares Parent Common Stock with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, unless and until the holder of such Company Stock Certificate shall surrender such certificate. Subject to the effect of escheat or other applicable Laws, following surrender of any such Company Stock Certificate, there shall be paid to the holder of the certificates representing shares of Parent Common Stock issued in exchange therefor, without interest, (i) promptly, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such shares of Parent Common Stock.
(g) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Company Stock Certificates, no dividend or distribution with respect to Parent Common Stock shall be payable on or with respect to any fractional share and such fractional share interests will not entitle the owner thereof to any rights of a stockholder of Parent.
(h) Parent shall not be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of any shares of Company Shares that were issued and outstanding Stock immediately prior to such time when the Acquisition Merger Effective Time amounts would otherwise escheat to or SPAC Ordinary Shares that were issued and outstanding immediately prior become property of any Governmental Authority shall become, to the First SPAC Merger Effective Time (as applicable) in either case until extent permitted by applicable Law, the holders property of record Parent free and clear of such Company Shares any claims or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)interest of any Person previously entitled thereto.
Appears in 1 contract
Samples: Merger Agreement (Viasat Inc)
Payment of Merger Consideration. (a) At least three (3) Business Days In accordance with the terms of the Paying Agent Agreement, as soon as reasonably practicable prior to the Closing Date, the Company shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, and the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, to be issued to such Company Shareholder at the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company Paying Agent shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send deliver to each Company Shareholder of record: (1) a letter of transmittal for use in such exchange, in a form customary for transactions of a similar nature and reasonably acceptable to the Paying Agent, the Purchaser and the Company (a “Transmittal Letter”), which shall specify that delivery of the Stock Certificates shall be effected, and SPACrisk of loss and title to the Stock Certificates and the Company Shares evidenced thereby shall pass, a letter only upon the proper delivery of transmittal the Stock Certificates to the Paying Agent and satisfaction of the other Merger Consideration Payment Conditions, and shall be in such form and shall comply with such other requirements as are set forth in the Paying Agent Agreement, (2) instructions as reasonably specified by the Paying Agent for use in effecting the surrender of the Stock Certificates in exchange for the Merger Consideration with respect to the Company Shares evidenced by such exchange Stock Certificates pursuant to the terms and conditions of this Agreement (a the “Company Letter of TransmittalStock Certificate Surrender Instructions”).
, and (c3) Notwithstanding any other provision a Form of this Election as described in Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) 2.9(f). Any Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly Shareholder that surrenders for cancellation to the holders entitled thereto by entering Paying Agent the Stock Certificate(s) evidencing such holders on Company Shareholder’s Company Shares in accordance with the register Stock Certificate Surrender Instructions, together with corresponding Transmittal Letter, duly completed and executed, has complied with all other requirements set forth in the instructions thereto, along with supplying to the Paying Agent such Company Shareholder’s completed and executed Form of members maintained by PubCo Election (or its share registrar) for collectively, the PubCo Ordinary Shares.
(d) Each SPAC Shareholder “Merger Consideration Payment Conditions”), shall be entitled to receive the Merger Consideration with respect to the Company Shares evidenced by such number of PubCo Ordinary Shares Stock Certificate(s) as calculated pursuant to Section 4.1(cfollows:
(i) as soon as reasonably practicable after the First SPAC later of: (A) the date on which a Company Shareholder has satisfied the Merger Consideration Payment Conditions; and (B) the Effective Time.
, the Paying Agent shall: (e1) Each with respect to any Company Shareholder shall be entitled to receive such number of PubCo Ordinary Sharesthat has made a Cash and Stock Election or a deemed Cash and Stock Election, as the in each case may be, as calculated pursuant to Section 4.3(a2.9, pay to such Company Shareholder (x) and Section 4.3(bthe Cash Merger Consideration with respect to such Company Shareholder’s Company Shares in cash (less such Company Shareholder’s Pro Rata Cash Share of the Escrowed Cash with respect to such Company Shareholder’s Company Shares), without interest, by wire transfer of immediately available funds and (y) the Stock Merger Consideration with respect to such Company Shareholder’s Company Shares (less such Company Shareholder’s Pro Rata Share of the Escrowed Shares), by delivery to such Company Shareholder of a certificate evidencing such Stock Merger Consideration, duly executed by the Purchaser, along with any applicable Cash Payment in Lieu of Fractional Shares, in cash, without interest, by wire transfer of immediately available funds; and (2) with respect to any Company Shareholder that has made an effective Stock Election pursuant to Section 2.9, deliver to such Company Shareholder the Stock Merger Consideration with respect to such Company Shareholder’s Company Shares (less such Company Shareholder’s Pro Rata Share of the Escrowed Shares), by delivery to such Company Shareholder a certificate evidencing such Stock Merger Consideration, duly executed by the Purchaser, along with any applicable Cash Payment in Lieu of Fractional Shares, in cash, without interest, by wire transfer of immediately available funds;
(ii) as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior theretolater of: (iA) the certificate(s), if any, representing such date on which a Company Shares (“Company Certificates” and together with Shareholder has satisfied the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) Merger Consideration Payment Conditions; and (iiB) a properly completed and duly executed Company Letter the Paying Agent’s receipt of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Upward Post-Closing NWC Adjustment Merger Effective Time for all purposes only the right to receive such number Consideration by wire transfer of PubCo Ordinary Shares, as the case may be, as calculated immediately available funds pursuant to Section 4.3(a2.11(c), the Paying Agent shall pay to each Company Shareholder such Company’s Shareholder’s Pro Rata Cash Share of the Upward Post-Closing NWC Adjustment Merger Consideration with respect to such Company Shareholder’s Company Shares in cash, without interest, by wire transfer of immediately available funds;
(iii) as soon as reasonably practicable after the later of: (A) the date on which a Company Shareholder has satisfied the Merger Consideration Payment Conditions; and (B) the Paying Agent’s receipt of Escrowed Cash pursuant to Section 4.3(b2.8, the Paying Agent shall deliver to such Company Shareholder such Company Shareholder’s Pro Rata Cash Share of the Escrowed Cash with respect to such Company Shareholder’s Company Shares, without interest, by wire transfer of immediately available funds to such Company Shareholder; and
(iv) as soon as reasonably practicable after the later of: (as evidenced A) the date on which a Company Shareholder has satisfied the Merger Consideration Payment Conditions; and (B) the Paying Agent’s receipt of stock certificates evidencing the Escrowed Shares in connection with any release of Escrowed Shares pursuant to Section 2.8, the Paying Agent shall deliver to such Company Shareholder such Company Shareholder’s Pro Rata Share of the Escrowed Shares with respect to such Company Shareholder’s Company Shares, by delivery to such Company Shareholder of a certificate evidencing such Escrowed Shares, duly executed by the Purchaser, along with any applicable Cash Payment in Lieu of Fractional Shares, in cash, without interest, by wire transfer of immediately available funds. No dividends or other distributions with respect to shares of Purchaser Stock shall be paid to the holder of any unsurrendered Stock Certificate until such Stock Certificate is surrendered as provided above in this Section 2.10(b). Subject to the effect of applicable Laws, following such surrender, there shall be paid, without interest, to the record holder of the shares of Purchaser Stock issued in exchange for Company Certificate).
(f) If any PubCo Ordinary Share Shares represented immediately prior to the Effective Time by such Stock Certificate all dividends and other distributions payable in respect of such Purchaser Stock with a record date after the Effective Time. In the event that a transfer of ownership of Company Shares is to not registered in the stock ledger of the Company, the Merger Consideration may be delivered or issued paid to a Person other than the Person in whose name the Stock Certificate so surrendered Shareholder is registered as long as such Stock Certificate is registered immediately prior to properly endorsed or otherwise in proper form for transfer, any signature guarantee or other requirements reasonably requested by the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall Paying Agent have been permitted in accordance with the terms of the Organizational Documents of the Company satisfied, and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo payment pays any transfer or other Taxes required as a result by reason of such delivery the payment to a Person other than the registered holder of such Shareholder Certificate, Stock Certificate or establish establishes to the satisfaction of PubCo the Purchaser, the Company and the Paying Agent that such Tax has Taxes either have been paid or is are not payable.
(g) Notwithstanding anything to the contrary contained hereinapplicable. Until surrendered as contemplated by this Section 2.10(b), in the event that any Shareholder each Stock Certificate shall have been lostbe deemed, stolen or destroyedfrom and after the Effective Time, in lieu subject to Section 2.4, to represent only the right to receive, upon such surrender and satisfaction by the holder thereof of delivery of a Shareholder Certificate to PubCothe Merger Consideration Payment Conditions, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company Merger Consideration with respect to the Company Shares evidenced by such Stock Certificate, without interest. No interest will be paid or SPAC Ordinary Shareswill accrue on any amount payable upon the surrender of any Stock Certificate. The Paying Agent shall, with respect to each holder of Company Options that has provided all documentation required by this Agreement, pay at the Closing to such holder the Option Payments (less such holder’s Pro Rata Cash Share of the Escrowed Cash with respect to such holder’s Company Options). Each holder of Company Options or Performance Units shall be entitled to receive as soon as reasonably practicable after the Paying Agent’s receipt of Upward Post-Closing NWC Adjustment Merger Consideration by wire transfer of immediately available funds pursuant to Section 2.11(c), such holder’s Pro Rata Cash Share of the Upward Post-Closing NWC Adjustment Merger Consideration with respect to such holder’s Company Options or Performance Units, as applicable, represented in cash, without interest, by wire transfer of immediately available funds. Each holder of Company Options or Performance Units shall be entitled to receive as soon as reasonably practicable after the Shareholder Certificates alleged Paying Agent’s receipt of Escrowed Cash pursuant to have been lostSection 2.8, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members such holder’s Pro Rata Cash Share of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement Escrowed Cash with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of such holder’s Company Shares) Options or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (Performance Units, as applicable) , in either case until the holders cash, without interest, by wire transfer of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)immediately available funds.
Appears in 1 contract
Samples: Merger Agreement (On Assignment Inc)
Payment of Merger Consideration. (a) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to SPAC Purchaser a statement (the “Company Closing Statement”) ), signed by the Chief Financial Officer of the Company, setting forth in good faith as of the Closing DateFirst Merger Effective Time: (a) the aggregate number of Company Ordinary Shares (by classes) and Company Preferred Shares (by series) issued and outstanding; (b) the aggregate number of Company Total Fully Diluted Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company ShareholderShareholders, the name and address of such Company ShareholderShareholders, the number of Company Shares owned by such Company Shareholder Shareholders as of immediately prior to the Acquisition First Merger Effective Time, and the number of PubCo Class A Pubco Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, to be issued to such Company Shareholder Shareholders at the Acquisition Closing; and . Such Company Closing Statement shall also include (fi) an initial list (which may, for a copy of the avoidance Company’s good faith estimated unaudited consolidated balance sheet of doubt, be amended by the Company in its sole discretion) setting forth, with respect as of immediately prior to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicableupon which such calculations are based. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC Purchaser and its representatives all information reasonably requested by SPAC Purchaser or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPACPurchaser’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPACPurchaser, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As Prior to the Effective Time, Pubco shall appoint an exchange agent reasonably acceptable to the Company and Purchaser (in such capacity, the “Exchange Agent”), for the purpose of exchanging (i) Company Shares for a condition to receiving the PubCo number of Pubco Ordinary Shares, and (ii) Purchaser Securities for a number of Pubco Ordinary Shares, each in accordance with the provisions of this Agreement, the First Merger Plan of Merger and the Second Merger Plan of Merger, as applicable. At or prior to the Effective Time, Pubco shall deposit, or cause to be deposited with the Exchange Agent, (i) that number of Pubco Class A Ordinary Shares and (ii) that number of Pubco Class B Ordinary Shares, as calculated pursuant to Section 2.1 and Section 2.2 of this Agreement. If the Exchange Agent requires that, as a condition to receive the Pubco Ordinary Shares, any holder of Company Shares or Purchaser Securities deliver a letter of transmittal to the Exchange Agent, then at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo as the case may be, Pubco shall send send, or shall cause the Exchange Agent to send, to each Company Shareholder or Purchaser Securityholder a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange Purchaser (a “Company Letter of Transmittal”).
(c) Notwithstanding any other provision of this Section 4.43.2, any obligation on PubCo of Pubco under this Agreement to issue PubCo Pubco Ordinary Shares to (i) SPAC Purchaser Shareholders entitled to PubCo Pubco Class A Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Pubco Ordinary Shares shall be satisfied (a) by PubCo Pubco issuing such PubCo Pubco Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo Pubco (or its share registrar) for the PubCo Pubco Class A Ordinary Shares or Pubco Class B Ordinary Shares, as applicable and (b) in the case of any Pubco Ordinary Shares subject to restrictions on sale and/or transfer, by instructing the depositary bank in writing to accept for deposit the restricted Pubco Ordinary Shares in the name(s) and at the address(es) of the holder(s) entitled thereto and affixed with the applicable legends reflecting the restrictions on sale and/or transfer.
(d) Each SPAC Shareholder Purchaser Securityholder shall be entitled to receive such number of PubCo Pubco Class A Ordinary Shares as calculated pursuant to Section 4.1(c) 2.2 as soon as reasonably practicable after the First SPAC Merger Effective Time, but subject to the delivery to the Exchange Agent of the following items prior thereto: (i) the certificate(s), if any, representing Purchaser Securities (“Purchaser Certificates”) (or a Lost Certificate Affidavit) and (ii) a properly completed and duly executed Letter of Transmittal (if required). Until so surrendered, each such Purchaser Certificate shall represent after the Effective Time for all purposes only the right to receive such number of Pubco Class A Ordinary Shares as calculated pursuant to Section 2.2 (as evidenced by the Purchaser Certificate).
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Pubco Class A Ordinary Shares or Pubco Class B Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b)2.1, as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo the Exchange Agent of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Purchaser Certificates, the “Shareholder Securityholder Certificates” (or (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo the Exchange Agent pursuant to this sentence and the first sentence of Section 3.2(d), as applicable, may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Pubco Class A Ordinary Shares or Pubco Class B Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) 2.1 (as evidenced by the Company Certificate).
(f) If any PubCo Pubco Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Securityholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Purchaser Ordinary Shares, the transfer of such SPAC Purchaser Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPACPurchaser, (ii) the Securityholder Certificate so surrendered be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer; (iii) the recipient of such PubCo Pubco Ordinary ShareShares, or the Person in whose name such PubCo Pubco Ordinary Share Shares is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo the Exchange Agent and (iiiiv) the Person requesting such delivery shall have paid to PubCo the Exchange Agent any transfer or other Taxes taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Securityholder Certificate, or establish to the satisfaction of PubCo the Exchange Agent that such Tax tax has been paid or is not payable.
(g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Securityholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Securityholder Certificate to PubCothe Exchange Agent, the Purchaser Shareholder or Company Shareholder Shareholder, as applicable, may instead deliver to PubCo the Exchange Agent an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo Pubco (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo Pubco may include a requirement that the owner of such lost, stolen or destroyed Shareholder Securityholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCoPubco, SPAC Purchaser or the Surviving Company with respect to the Company Shares or SPAC Ordinary SharesPurchaser Securities, as applicable, represented by the Shareholder Securityholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g3.2(g) shall, unless the context otherwise requires, be treated as a Shareholder Securityholder Certificate for all purposes of this Agreement. Pubco or its Exchange Agent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against Pubco with respect to the certificates alleged to have been lost, stolen or destroyed.
(h) After the Acquisition First Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC Purchaser shall be closed, and thereafter there shall be no further registration on the register of members of SPAC Surviving Entity of transfers of SPAC Ordinary Shares Purchaser Securities that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Pubco Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares or Purchaser Securities that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares Purchaser Securities (as applicable) shall have provided the applicable Transmittal Documents Documents. Subject to applicable Law, following the delivery of the applicable Transmittal Documents, the Exchange Agent shall promptly deliver to the record holders thereof, without interest, the applicable Pubco Ordinary Shares and the amount of any such dividends or other distributions with a record date after the Effective Time, as applicable, theretofore paid with respect to such Pubco Ordinary Shares.
(i) All securities issued upon the surrender of Securityholder Certificates (or delivery of a Lost Certificate Affidavit) in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to Purchaser Securities or Company Shares, as applicable, represented by such Securityholder Certificates, provided that any restrictions on the sale and transfer of such Company Shares or Purchaser Securities shall also apply to the Pubco Ordinary Shares so issued in exchange, as applicable. Any portion of the Pubco Ordinary Shares made available to the Exchange Agent pursuant to Section 4.4(d3.2(b) that remains unclaimed by Purchaser Shareholders or Company Shareholders one year after the Effective Time shall be returned to Pubco, upon demand, and any such Purchaser Shareholder or Company Shareholder, as applicable, who has not exchanged its Purchaser Securities or Company Shares, as applicable, for the applicable portion of Pubco Ordinary Shares in accordance with this Section 3.2 prior to that time shall thereafter look only to Pubco for payment of the applicable Pubco Ordinary Shares, without any interest thereon (but with any dividends paid with respect thereto). Notwithstanding anything to the contrary in this Agreement, none of the Surviving Company, the Surviving Entity, Pubco or any other Party hereto or any representative of any of the foregoing shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(j) Notwithstanding anything to the contrary contained herein, no fraction of a Pubco Ordinary Share will be issued by virtue of this Agreement or the Transactions contemplated hereby, and each holder of Purchaser Securities or Company Shares, as applicable who would otherwise be entitled to a fraction of a Pubco Ordinary Share (after aggregating all Pubco Ordinary Shares to which such holder otherwise would be entitled) shall instead have the number of Pubco Ordinary Shares issued to such holder down to the nearest whole share. Such fractional share interests will not entitle the owner thereof to vote or to any rights of a shareholder of Pubco.
Appears in 1 contract
Samples: Business Combination Agreement (Golden Star Acquisition Corp)
Payment of Merger Consideration. (a) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to SPAC Purchaser a statement (the “Company Closing Statement”) ), signed by the Chief Financial Officer of the Company, setting forth in good faith as of the Closing DateFirst Merger Effective Time: (a) the aggregate number of Company Ordinary Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares issuable upon the exercise and conversion of the Company Convertible Notes; (c) the aggregate number of Company Fully Diluted Shares, (cd) the Company’s calculation of the Per Share Equity Value; (de) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (ef) a list setting forth, with respect to each Company ShareholderSecurityholder, the name and address of such Company ShareholderSecurityholder, the number and nature of Company Shares Securities (including whether such Company Securities are Specially Designated Shares) owned by such Company Shareholder Securityholder as of immediately prior to the Acquisition First Merger Effective Time, and the number of PubCo Pubco Class A Ordinary Shares or PubCo Pubco Class B Ordinary Shares, as applicable, to be issued to such Company Shareholder Securityholders at the Acquisition Closing; . Such Company Closing Statement shall also include (i) a copy of the Company’s good faith estimated unaudited consolidated balance sheet of the Company as of immediately prior to the Closing upon which such calculations are based, and (fii) an initial list (which may, wire transfer or other applicable delivery instructions for the avoidance payment of doubt, be amended by the each item of Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares Transaction Expenses to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicablepaid at Closing. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC Purchaser and its representatives all information reasonably requested by SPAC Purchaser or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPACPurchaser’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPACPurchaser, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As Prior to the Effective Time, Pubco shall appoint an exchange agent reasonably acceptable to the Company and Purchaser (in such capacity, the “Exchange Agent”), for the purpose of exchanging (i) Company Shares (other than any Company Dissenting Shares) for a condition to receiving the PubCo number of Pubco Ordinary Shares, and (ii) Purchaser Ordinary Shares (other than those described in Sections 2.2(e) and 2.6(c) above) for a number of Pubco Ordinary Shares, each in accordance with the provisions of this Agreement, the First Merger Documents and the Second Merger Documents, as applicable. At or prior to the Effective Time, Pubco shall deposit, or cause to be deposited with the Exchange Agent, (i) that number of Pubco Class A Ordinary Shares and (ii) that number of Pubco Class B Ordinary Shares, as calculated pursuant to Section 2.1 and Section 2.2 of this Agreement. If the Exchange Agent requires that, as a condition to receive the Pubco Ordinary Shares, any holder of Company Shares or Purchaser Ordinary Shares deliver a letter of transmittal to the Exchange Agent, then at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo as the case may be, Pubco shall send send, or shall cause the Exchange Agent to send, to each Company Shareholder or Purchaser Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange Purchaser (a “Company Letter of Transmittal”).
(c) Notwithstanding any other provision of this Section 4.43.2, any obligation on PubCo of Pubco under this Agreement to issue PubCo Pubco Ordinary Shares to (i) SPAC Purchaser Shareholders entitled to PubCo Pubco Class A Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Pubco Ordinary Shares shall be satisfied (a) by PubCo Pubco issuing such PubCo Pubco Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo Pubco (or its share registrar) for the PubCo Pubco Class A Ordinary Shares or Pubco Class B Ordinary Shares, as applicable and (b) in the case of any Pubco Ordinary Shares subject to restrictions on sale and/or transfer, by instructing the depositary bank in writing to accept for deposit the restricted Pubco Ordinary Shares in the name(s) and at the address(es) of the holder(s) entitled thereto and affixed with the applicable legends reflecting the restrictions on sale and/or transfer.
(d) Each SPAC Purchaser Shareholder shall be entitled to receive such number of PubCo Pubco Class A Ordinary Shares as calculated pursuant to Section 4.1(c) 2.2 as soon as reasonably practicable after the First SPAC Merger Effective Time, but subject to the delivery to the Exchange Agent of the following items prior thereto: (i) the certificate(s), if any, representing Purchaser Ordinary Shares (“Purchaser Certificates”) (or a Lost Certificate Affidavit) and (ii) a properly completed and duly executed Letter of Transmittal (if required). Until so surrendered, each such Purchaser Certificate shall represent after the Effective Time for all purposes only the right to receive such number of Pubco Class A Ordinary Shares as calculated pursuant to Section 2.2 (as evidenced by the Purchaser Certificate).
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Pubco Class A Ordinary Shares or Pubco Class B Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b)2.1, as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo the Exchange Agent of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Purchaser Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo the Exchange Agent pursuant to this sentence and the first sentence of Section 3.2(d), as applicable, may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Pubco Class A Ordinary Shares or Pubco Class B Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) 2.1 (as evidenced by the Company Certificate).
(f) If any PubCo Pubco Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Purchaser Ordinary Shares, the transfer of such SPAC Purchaser Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPACPurchaser, (ii) the Shareholder Certificate so surrendered be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer; (iii) the recipient of such PubCo Pubco Ordinary ShareShares, or the Person in whose name such PubCo Pubco Ordinary Share Shares is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo the Exchange Agent and (iiiiv) the Person requesting such delivery shall have paid to PubCo the Exchange Agent any transfer or other Taxes taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Certificate, or establish to the satisfaction of PubCo the Exchange Agent that such Tax tax has been paid or is not payable.
(g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCothe Exchange Agent, the Purchaser Shareholder or Company Shareholder Shareholder, as applicable, may instead deliver to PubCo the Exchange Agent an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo Pubco (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo Pubco may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCoPubco, SPAC Purchaser or the Surviving Company with respect to the Company Shares or SPAC Purchaser Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g3.2(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement. Pubco or its Exchange Agent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against Pubco with respect to the certificates alleged to have been lost, stolen or destroyed.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC the Second Surviving Company shall be closed, and thereafter there shall be no further registration on the register of members of SPAC Purchaser of transfers of SPAC Purchaser Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Pubco Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Purchaser Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Purchaser Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents Documents. Subject to applicable Law, following the delivery of the applicable Transmittal Documents, the Exchange Agent shall promptly deliver to the record holders thereof, without interest, the applicable Pubco Ordinary Shares and the amount of any such dividends or other distributions with a record date after the Effective Time, as applicable, theretofore paid with respect to such Pubco Ordinary Shares.
(i) All securities issued upon the surrender of Shareholder Certificates (or delivery of a Lost Certificate Affidavit) in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to Purchaser Ordinary Shares or Company Shares, as applicable, represented by such Shareholder Certificates, provided that any restrictions on the sale and transfer of such Company Shares or Purchaser Ordinary Shares shall also apply to the Pubco Ordinary Shares so issued in exchange, as applicable. Any portion of the Pubco Ordinary Shares made available to the Exchange Agent pursuant to Section 4.4(d3.2(b) that remains unclaimed by Purchaser Shareholders or Company Shareholders one year after the Effective Time shall be returned to Pubco, upon demand, and any such Purchaser Shareholder or Company Shareholder, as applicable, who has not exchanged its Purchaser Ordinary Shares or Company Shares, as applicable, for the applicable portion of Pubco Ordinary Shares in accordance with this Section 3.2 prior to that time shall thereafter look only to Pubco for payment of the applicable Pubco Ordinary Shares, without any interest thereon (but with any dividends paid with respect thereto). Notwithstanding anything to the contrary in this Agreement, none of the First Surviving Company, the Second Surviving Company, Pubco or any other party hereto or any representative of any of the foregoing shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(j) Notwithstanding anything to the contrary contained herein, no fraction of a Pubco Ordinary Share will be issued by virtue of this Agreement or the transactions contemplated hereby, and each holder of Purchaser Ordinary Shares or Company Shares, as applicable who would otherwise be entitled to a fraction of a Pubco Ordinary Share (after aggregating all Pubco Ordinary Shares to which such holder otherwise would be entitled) shall instead have the number of Pubco Ordinary Shares issued to such holder down to the nearest whole share. Such fractional share interests will not entitle the owner thereof to vote or to any rights of a shareholder of Pubco.
Appears in 1 contract
Samples: Business Combination Agreement (Aimei Health Technology Co., Ltd.)
Payment of Merger Consideration. The Merger Consideration, Estimated Closing Debt and Estimated Closing Transaction Expenses shall be paid at Closing as follows:
(ai) At least Parent will pay, by wire transfer of immediately available funds on behalf of the Company, all amounts necessary to discharge fully the Estimated Closing Debt, in accordance with the Payoff Letters delivered pursuant to Section 8.2(l).
(ii) Parent shall pay, on behalf of the Company and the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, all amounts necessary to discharge fully the Estimated Closing Transaction Expenses, by wire transfer of immediately available funds to the accounts designated by the payees of such Transaction Expenses; provided, however, any such Transaction Expenses payable to a Person who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient such Transaction Expenses (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date) through the Company’s payroll, provided that, if such amount becomes payable within three (3) Business Days prior to the Closing Datea Company payroll date, the Company such amount shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately be paid on or prior to the Acquisition Merger Effective Timesubsequent Company payroll date.
(iii) Parent shall pay, on behalf of the Company and the number Executing Stockholders, the Executing Option Holders and Non-Owner Participants, all amounts necessary to discharge fully the Change of PubCo Class A Ordinary Shares Control Payments (excluding the portion of any such Change of Control Payments attributable to the Escrow Account or PubCo Class B Ordinary SharesStockholder Representative Reserve), as applicable, by wire transfer of immediately available funds to be issued to such Company Shareholder at the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended accounts designated by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address payees of such anticipated Earnout ShareholderChange of Control Payments; provided, and the Pro Rata Portion (as defined below) however, any such Change of the Earnout Shares Control Payments payable to be issued a Person who is employed by a Target Entity prior to such Earnout Shareholder after or following the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within be paid to the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise pay the applicable recipient such Change of Control Payment (less any applicable withholding taxes, which the Company Closing Statement shall remit to incorporate any mutually agreeable changes given the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date) through the Company’s payroll, provided that, if such commentsamount becomes payable within three (3) Business Days prior to a Company payroll date, such amount shall be paid on or prior to the subsequent Company payroll date.
(biv) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo Parent shall send to each Company Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable pay to the Company and SPAC, a letter of transmittal for use in such exchange (a “Company Letter of Transmittal”)Escrow Agent the Escrow Amount.
(cv) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares Parent shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly pay to the holders entitled thereto by entering such holders on Stockholder Representative, as a source of funds upon which the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder Stockholder Representative shall be entitled to receive such number of PubCo Ordinary Shares as calculated pursuant draw in the Stockholder Representative’s discretion to Section 4.1(c) as soon as reasonably practicable after pay for any costs and expenses incurred by the First SPAC Merger Effective Time.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as Stockholder Representative in the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo performance of the following items prior thereto: Stockholder Representative’s duties and obligations under this Agreement, an amount equal to One Hundred Thousand Dollars (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required$100,000) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal DocumentsStockholder Representative Reserve”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right by transfer of immediately available funds to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate).
(f) If any PubCo Ordinary Share is to be delivered or issued to a Person other than the Person an account designated in whose name the surrendered Shareholder Certificate is registered immediately writing prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition Closing to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Certificate, or establish to the satisfaction of PubCo that such Tax has been paid or is not payable.
(g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented Parent by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this AgreementStockholder Representative.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)
Appears in 1 contract
Samples: Agreement and Plan of Merger
Payment of Merger Consideration. (a) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Ordinary Shares (by classes) and Company Preferred Shares (by series) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Ordinary Shares and Company Preferred Shares owned by such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, and the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, to be issued to such Company Shareholder at the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send send, to each Company Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange exchange, in a form reasonably acceptable to the Company and SPAC (a “Company Letter of Transmittal”).
(c) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder shall be entitled to receive such number of PubCo Ordinary Shares as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Merger Effective Time.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate).
(f) If any PubCo Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Certificate, or establish to the satisfaction of PubCo that such Tax has been paid or is not payable.
(g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)
Appears in 1 contract
Payment of Merger Consideration. (a) At least three (3) Business Days prior to In accordance with the Closing Dateterms of the Paying Agent Agreement, as soon as the reasonably practicable after the date of this Agreement, the Company Paying Agent shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address Stockholder of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, and the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, to be issued to such Company Shareholder at the Acquisition Closing; and record: (fi) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send to each Company Shareholder a letter of transmittal for use in such exchange, in a form customary for transactions of a similar nature and reasonably acceptable to the Paying Agent, the Purchaser and the Company (a “Transmittal Letter”), which shall specify that delivery of the Stock Certificates shall be effected, and SPACrisk of loss and title to the Stock Certificates and the Company Shares evidenced thereby shall pass, a letter only upon the proper delivery of transmittal the Stock Certificates to the Paying Agent and satisfaction of the other Merger Consideration Payment Conditions, and shall be in such form and shall comply with such other requirements as are set forth in the Paying Agent Agreement, (ii) instructions as reasonably specified by the Paying Agent for use in effecting the surrender of the Stock Certificates in exchange for the Merger Consideration with respect to the Company Shares evidenced by such exchange Stock Certificates pursuant to the terms and conditions of this Agreement (a the “Company Letter of TransmittalStock Certificate Surrender Instructions”).
, and (ciii) Notwithstanding any other provision a Form of this Election as described in Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) 2.9(c). Any Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly Stockholder that surrenders for cancellation to the holders entitled thereto by entering Paying Agent the Stock Certificate(s) evidencing such holders on Company Stockholder’s Company Shares in accordance with the register Stock Certificate Surrender Instructions, together with corresponding Transmittal Letter, duly completed and executed, has complied with all other requirements set forth in the instructions thereto, along with supplying to the Paying Agent such Company Stockholder’s completed and executed Form of members maintained by PubCo Election (or its share registrar) for collectively, the PubCo Ordinary Shares.
(d) Each SPAC Shareholder “Merger Consideration Payment Conditions”), shall be entitled to receive the Merger Consideration with respect to the Company Shares evidenced by such number of PubCo Ordinary Shares Stock Certificate(s) as calculated pursuant to Section 4.1(cfollows:
(i) as soon as reasonably practicable after the First SPAC later of: (A) the date on which a Company Stockholder has satisfied the Merger Consideration Payment Conditions; and (B) the Effective Time.
, the Paying Agent shall: (e1) Each with respect to any Company Shareholder shall be entitled to receive such number of PubCo Ordinary SharesStockholder that has made a Cash Election or a deemed Cash Election, as the in each case may be, as calculated pursuant to Section 4.3(a2.9, pay to such Company Stockholder the Cash Estimated Merger Consideration with respect to such Company Stockholder’s Company Shares in cash, without interest, by wire transfer of immediately available funds; and (2) and with respect to any Company Stockholder that has made an effective Share Election pursuant to Section 4.3(b)2.9, deliver to such Company Stockholder the Shares Estimated Merger Consideration with respect to such Company Stockholder’s Company Shares, by delivery to such Company Stockholder of a certificate evidencing such Shares Merger Consideration, duly executed by the Purchaser, along with any applicable Cash Payment in Lieu of Fractional Shares, in cash, without interest, by wire transfer of immediately available funds;
(ii) as soon as reasonably practicable after the Acquisition later of: (A) the date on which a Company Stockholder has satisfied the Merger Effective TimeConsideration Payment Conditions; and (B) the Paying Agent’s receipt of Cash Upward Post-Closing NWC Adjustment Merger Consideration by wire transfer of immediately available funds and stock certificates evidencing the Shares Upward Post-Closing NWC Adjustment Merger Consideration from the Company in connection with any Upward Post-Closing NWC Adjustment pursuant to Section 2.11(b), but subject the Paying Agent shall: (1) with respect to any Company Stockholder that has made a Cash Election or a deemed Cash Election, in each case pursuant to Section 2.9, pay to such Company Stockholder the Cash Upward Post-Closing NWC Adjustment Merger Consideration with respect to such Company Stockholder’s Company Shares in cash, without interest, by wire transfer of immediately available funds; and (2) with respect to any Company Stockholder that has made an effective Share Election pursuant to Section 2.9, deliver to such Company Stockholder the Shares Upward Post-Closing NWC Adjustment Merger Consideration with respect to such Company Stockholder’s Company Shares, by delivery to PubCo such Company Stockholder of a certificate evidencing such Shares Merger Consideration, duly executed by the following items prior theretoPurchaser, along with any applicable Cash Payment in Lieu of Fractional Shares, in cash, without interest, by wire transfer of immediately available funds;
(iii) as soon as reasonably practicable after the later of: (iA) the certificate(s)date on which a Company Stockholder has satisfied the Merger Consideration Payment Conditions; and (B) the Paying Agent’s receipt of Escrowed Funds by wire transfer of immediately available funds and stock certificates evidencing the Escrowed Shares in connection with the Initial Escrow Period Expiration Date, if anythe Second Escrow Period Expiration Date or any subsequent release of Escrowed Funds and Escrowed Shares pursuant to Section 2.8, representing the Paying Agent shall: (1) with respect to any Company Stockholder that has made a Cash Election or a deemed Cash Election, in each case pursuant to Section 2.9, pay to such Company Stockholder the Escrowed Funds with respect to such Company Stockholder’s Company Shares in cash, without interest, by wire transfer of immediately available funds; and (2) with respect to any Company Stockholder that has made an effective Share Election pursuant to Section 2.9, deliver to such Company Stockholder the Escrowed Shares with respect to such Company Stockholder’s Company Shares, by delivery to such Company Stockholder of a certificate evidencing such Escrowed Shares, duly executed by the Purchaser, along with any applicable Cash Payment in Lieu of Fractional Shares, in cash, without interest, by wire transfer of immediately available funds; and
(iv) as soon as reasonably practicable after the later of: (A) the date on which a Company Stockholder has satisfied the Merger Consideration Payment Conditions; and (B) the Paying Agent’s receipt of immediately available funds in connection with payment of any FiberNet Sale Proceeds or Fibertech Sale Proceeds as described in Section 2.12, the Paying Agent shall pay to such Company Stockholder the portion of such funds with respect to such Company Shares (“in cash, without interest, by wire transfer of immediately available funds. No dividends or other distributions with respect to shares of Purchaser Stock shall be paid to the holder of any unsurrendered Stock Certificate until such Stock Certificate is surrendered as provided above in this Section 2.10(b). Subject to the effect of applicable Laws, following such surrender, there shall be paid, without interest, to the record holder of the shares of Purchaser Stock issued in exchange for Company Certificates” Shares represented immediately prior to the Effective Time by such Stock Certificate all dividends and together other distributions payable in respect of such Purchaser Stock with a record date after the SPAC CertificatesEffective Time. In the event that a transfer of ownership of Company Shares is not registered in the stock ledger of the Company, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence Merger Consideration may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate).
(f) If any PubCo Ordinary Share is to be delivered or issued paid to a Person other than the Person in whose name the Stock Certificate so surrendered Shareholder is registered as long as such Stock Certificate is registered immediately prior to properly endorsed or otherwise in proper form for transfer, any signature guarantee or other requirements reasonably requested by the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall Paying Agent have been permitted in accordance with the terms of the Organizational Documents of the Company satisfied, and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo payment pays any transfer or other Taxes required as a result by reason of such delivery the payment to a Person other than the registered holder of such Shareholder Certificate, Stock Certificate or establish establishes to the satisfaction of PubCo the Purchaser, the Company and the Paying Agent that such Tax has Taxes either have been paid or is are not payable.
(g) Notwithstanding anything to the contrary contained hereinapplicable. Until surrendered as contemplated by this Section 2.10(b), in the event that any Shareholder each Stock Certificate shall have been lostbe deemed, stolen or destroyedfrom and after the Effective Time, in lieu subject to Section 2.4 (Appraisal Rights), to represent only the right to receive, upon such surrender and satisfaction by the holder thereof of delivery of a Shareholder Certificate to PubCothe Merger Consideration Payment Conditions, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company Merger Consideration with respect to the Company Shares or SPAC Ordinary Sharesevidenced by such Stock Certificate, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Timewithout interest. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) interest will be paid to or will accrue on any amount payable upon the holders surrender of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)Stock Certificate.
Appears in 1 contract
Samples: Merger Agreement (Earthlink Inc)
Payment of Merger Consideration. (a) At least three (3) Business Days prior Prior to the Closing Date, the Company shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, and Pyramid shall appoint an agent, reasonably satisfactory to the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicableCompany, to act as disbursing agent (the “Disbursing Agent”) for the payment of the Merger Consideration upon surrender of certificates representing shares of Company Common Stock and Company Preferred Stock (the “Certificates”). At or prior to the Merger Effective Time, Pyramid Delaware shall deposit or cause to be issued deposited with the Disbursing Agent in trust for the benefit of the Company Stockholders (i) certificates representing the shares of Pyramid Delaware Common Stock (or make appropriate alternative arrangements if uncertificated shares of Pyramid Delaware Common Stock represented by a book entry will be issued) sufficient to such Company Shareholder at pay the Acquisition Closing; Merger Consideration, and (fii) an initial list (which mayas needed, for the avoidance cash sufficient to make payments in lieu of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address issuing fractional shares of such anticipated Earnout Shareholder, and the Pro Rata Portion (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date Pyramid Delaware Common Stock in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments3.06(e).
(b) As a condition to receiving Promptly after the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo Pyramid Delaware shall send cause the Disbursing Agent to mail to each Company Shareholder individual, corporation, limited liability company, partnership, association, joint venture, unincorporated organization, trust or any other entity, including a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPACgovernmental authority (each, a letter of transmittal for use in such exchange (a “Company Letter of Transmittalperson”).
(c) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder shall be entitled to receive such number of PubCo Ordinary Shares who was a record holder as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Merger Effective Time.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only of a Certificate which immediately prior to the Merger Effective Time represented shares of Company Common Stock or Company Preferred Stock, and whose shares were converted into the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated Merger Consideration pursuant to Section 4.3(a3.04, a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent, and which shall be in such form and shall have such other customary provisions as Pyramid Delaware may reasonably specify) and Section 4.3(b) (instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as evidenced may be reasonably required by the Company Certificate).
(f) Disbursing Agent, the holder of such Certificate shall be paid promptly in exchange therefor the Merger Consideration and such Certificate shall forthwith be canceled. If any PubCo Ordinary Share payment is to be delivered or issued made to a Person person other than the Person person in whose name the Certificate surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicableregistered, it shall be a condition to such delivery of payment that (i) the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person person requesting such delivery shall have paid to PubCo payment pay any transfer or other Taxes taxes required as a result by reason of such delivery the payment of the Merger Consideration to a Person person other than the registered holder of such Shareholder Certificate, the Certificate surrendered or establish to the satisfaction of PubCo Pyramid Delaware that such Tax has been paid or is not payableapplicable. Until surrendered in accordance with the provisions of this Section 3.06, each Certificate (other than Certificates representing Excluded Shares and other than Certificates representing Dissenting Shares) shall represent for all purposes only the right to receive, as and when payable hereunder, the applicable amount of the Merger Consideration in accordance with Section 3.04.
(gc) Notwithstanding anything From and after the Merger Effective Time, there shall be no registration of transfers of shares of Company Common Stock or Company Preferred Stock which were outstanding immediately prior to the contrary contained hereinMerger Effective Time on the stock transfer books of the Surviving Corporation. From and after the Merger Effective Time, the holders of shares of Company Common Stock or Company Preferred Stock outstanding immediately prior to the Merger Effective Time shall cease to have any rights with respect to such shares of Company Common Stock or Company Preferred Stock except as otherwise provided in this Agreement or by applicable law. All Merger Consideration paid upon the event that surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock or Company Preferred Stock previously represented by such Certificates. If, after the Merger Effective Time, Certificates are presented to Pyramid Delaware or the Surviving Corporation for any Shareholder reason, such Certificates shall be cancelled and exchanged as provided in this Article III. At the close of business on the day of the Merger Effective Time, the stock ledger of the Company shall be closed.
(d) If any Certificate shall have been lost, stolen or destroyed, in lieu upon the making of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable that fact by the person claiming such Certificate to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such be lost, stolen or destroyed Shareholder Certificate deliver and, if reasonably required by Pyramid Delaware, the posting by such person of a bond bond, in such sum reasonable amount as it Pyramid Delaware may reasonably direct direct, as indemnity against any claim that may be made against PubCoit with respect to such Certificate, SPAC the Disbursing Agent will pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock, Company Preferred Stock or Vested Company Restricted Shares formerly represented by such Certificate, as contemplated by this Article III.
(e) No fraction of a share of Pyramid Delaware Common Stock shall be issued by virtue of the Merger, but in lieu thereof each holder of shares of Company Common Stock or Company Preferred Stock who would otherwise be entitled to a fraction of a share of Pyramid Delaware Common Stock in connection with the Merger (after aggregating all fractional shares of Pyramid Delaware Common Stock to be received by such holder) shall receive from Pyramid Delaware an amount of cash (rounded down to the nearest whole cent), without interest, equal to the product obtained by multiplying (x) such fraction, by (y) the average closing price of one share of Pyramid Common Stock for the five consecutive trading days ending on the trading day immediately prior to the Merger Effective Time, as reported on the NYSE MKT.
(f) At any time after 180 days after the Merger Effective Time, Pyramid Delaware shall be entitled to require the Disbursing Agent to deliver to it any Merger Consideration which had been deposited by Pyramid or Pyramid Delaware, as the case may be, with the Disbursing Agent and not disbursed in exchange for Certificates. Thereafter, holders of shares of Company Common Stock and Company Preferred Stock shall look only to Pyramid Delaware (subject to the terms of this Agreement and abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable upon surrender of the Certificates held by them. If any Certificates shall not have been surrendered prior to two years after the Merger Effective Time (or immediately prior to such time on which any payment in respect thereof would otherwise escheat or become the property of any governmental unit or agency), the payment in respect of such Certificates shall, to the extent permitted by applicable law, become the property of Pyramid Delaware, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Pyramid Delaware, the Company, the Surviving Corporation or the Surviving Disbursing Agent shall be liable to any holder of a share of Company Common Stock or Company Preferred Stock for any Merger Consideration delivered in respect of such share of Company Common Stock or Company Preferred Stock to a public official pursuant to any abandoned property, escheat or other similar law.
(g) Pyramid Delaware and the Disbursing Agent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable to a holder of shares of Company Common Stock or Company Preferred Stock pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to the Company Shares making of such payment under the Code, or SPAC Ordinary Sharesunder any provision of state, as applicablelocal or foreign Tax law. To the extent amounts are so withheld and paid over to the appropriate taxing authority, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, withheld amounts shall be treated as a Shareholder Certificate for all purposes of this AgreementAgreement as having been paid to the person in respect of which such deduction and withholding was made.
(h) After If, between the Acquisition date of this Agreement and the Merger Effective Time, the register shares of members Pyramid Delaware Common Stock shall be changed or proposed to be changed into a different number or class of shares by reason of the Company shall be closed, and thereafter there shall be no further registration on the register occurrence of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the record date of this Agreement with respect to PubCo Ordinary Shares any reclassification, recapitalization, split-up, combination, exchange of shares or similar readjustment, in any such case within such period, or a stock dividend thereon shall be declared with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will within such period, appropriate adjustments shall be paid made to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time Consideration (as applicable) such term is defined below in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d3.06(i).
Appears in 1 contract
Samples: Merger Agreement (Pyramid Oil Co)
Payment of Merger Consideration. The Merger Consideration, Estimated Closing Debt and Estimated Closing Transaction Expenses shall be paid at Closing as follows:
(ai) At least Parent will pay, by wire transfer of immediately available funds on behalf of the Company, all amounts necessary to discharge fully the Estimated Closing Debt, in accordance with the Payoff Letters delivered pursuant to Section 8.2(l).
(ii) Parent shall pay, on behalf of the Company and the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, all amounts necessary to discharge fully the Estimated Closing Transaction Expenses, by wire transfer of immediately available funds to the accounts designated by the payees of such Transaction Expenses; provided, however, any such Transaction Expenses payable to a Person who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient such Transaction Expenses (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date) through the Company’s payroll, provided that, if such amount becomes payable within three (3) Business Days prior to the Closing Datea Company payroll date, the Company such amount shall prepare and deliver to SPAC a statement (the “Company Closing Statement”) setting forth in good faith as of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in each case, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, the name and address of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately be paid on or prior to the Acquisition Merger Effective Timesubsequent Company payroll date.
(iii) Parent shall pay, on behalf of the Company and the number Executing Stockholders, the Executing Option Holders and Non-Owner Participants, all amounts necessary to discharge fully the Change of PubCo Class A Ordinary Shares Control Payments (excluding the portion of any such Change of Control Payments attributable to the Escrow Account or PubCo Class B Ordinary SharesStockholder Representative Reserve), as applicable, by wire transfer of immediately available funds to be issued to such Company Shareholder at the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended accounts designated by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address payees of such anticipated Earnout ShareholderChange of Control Payments; provided, and the Pro Rata Portion (as defined below) however, any such Change of the Earnout Shares Control Payments payable to be issued a Person who is employed by a Target Entity prior to such Earnout Shareholder after or following the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within be paid to the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise pay the applicable recipient such Change of Control Payment (less any applicable withholding taxes, which the Company Closing Statement shall remit to incorporate any mutually agreeable changes given the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date) through the Company’s payroll, provided that, if such commentsamount becomes payable within three (3) Business Days prior to a Company payroll date, such amount shall be paid on or prior to the subsequent Company payroll date.
(biv) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo Parent shall send to each Company Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable pay to the Company and SPAC, a letter of transmittal for use in such exchange (a “Company Letter of Transmittal”)Escrow Agent the Escrow Amount.
(cv) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares Parent shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly pay to the holders entitled thereto by entering such holders on Stockholder Representative, as a source of funds upon which the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder Stockholder Representative shall be entitled to receive draw in the Stockholder Representative’s discretion to pay for any costs and expenses incurred by the Stockholder Representative in the performance of the Stockholder Representative’s duties and obligations under this Agreement, an amount equal to One Hundred Thousand Dollars ($100,000) (the “Stockholder Representative Reserve”), by transfer of immediately available funds to an account designated in writing prior to the Closing to Parent by the Stockholder Representative.
(vi) Parent shall pay to each Executing Option Holder who is not a Plan Participant, an amount equal to the applicable Closing Cancellation Payment payable to such number holder, by transfer of PubCo Ordinary Shares as calculated pursuant immediately available funds to Section 4.1(can account designed in writing prior to the Closing to Parent; provided, however, any such Closing Cancellation Payment payable to a Person who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable holder such Closing Cancellation Payment (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as reasonably practicable after (but in no event later than the First SPAC Merger Effective TimeCompany’s next payroll date) through the Company’s payroll, provided that, if such amount becomes payable within three (3) Business Days prior to a Company payroll date, such amount shall be paid on or prior to the subsequent Company payroll date.
(evii) Each Parent shall pay the balance of the Merger Consideration (after deducting the amounts paid in (i) through (vi) above) to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders by wire transfer of immediately available funds to an account designated in writing prior to Closing to Parent by the Stockholder Representative, for further distribution by the Stockholder Representative (or its designee) to the Stockholders that have delivered a Letter of Transmittal in respect of their Company Shareholder shall be entitled Shares. The Executing Stockholders hereby acknowledge and agree that the payment by Parent to receive such number of PubCo Ordinary Shares, as the case may be, as calculated Stockholder Representative pursuant to this Section 4.3(a2.6(c)(vii) satisfies Parent’s obligation to make the applicable payment of the remaining Merger Consideration pursuant to this Section 2.6(vii) for the benefit of the Executing Stockholders and Section 4.3(b)that, as soon as reasonably practicable after the Acquisition Merger Effective Timefollowing such payment, but subject to the delivery Section 2.7 hereof, Parent shall have no further obligation to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents any Executing Stockholder to be submitted to PubCo make any additional payment pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate2.6(vii).
(f) If any PubCo Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Certificate, or establish to the satisfaction of PubCo that such Tax has been paid or is not payable.
(g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kindred Healthcare, Inc)
Payment of Merger Consideration. (a) On the Closing Date, Buyer shall make (or cause to be made) the following payments:
(i) to an account, in the name of a financial institution reasonably acceptable to the Company and the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares.
(b) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger Consideration, and such certificate shall, after such surrender, be marked as canceled.
(c) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Preferred Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) If any consideration is to be paid to a person other than the person in whose name the certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition to such exchange that the person requesting such exchange shall deliver all documents required to evidence and effect such transfer, as well as such certificate, if applicable, and shall pay to the Surviving Corporation any transfer or other taxes required by reason of the payment of such consideration to a person other than that of the registered holder of the Share, or the certificate, as applicable, so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. If any certificate for Shares shall have been lost, stolen or destroyed, the Payment Agent shall pay such portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and (b) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificate.
(f) At least three the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2.
(3g) Business Days On or prior to the Closing Date, the Company shall prepare and deliver to SPAC Buyer and the Payment Agent a statement (the “Company Closing Statement”) schedule setting forth in good faith as the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Closing Date: (a) the aggregate number of Company Shares (by classes) issued and outstanding; (b) the aggregate number of Company Total Shares, (c) the Company’s calculation of the Per Share Equity Value; (d) the Company’s calculation of the Exchange Ratio, in Merger Consideration to which each caseEquityholder is entitled, including reasonable supporting detail therefor; and (e) a list setting forth, with respect to each Company Shareholder, wire instructions in the name and address case of such Company Shareholder, the number of Company Shares owned by such Company Shareholder as of immediately prior to the Acquisition Merger Effective Time, and the number of PubCo Class A Ordinary Shares or PubCo Class B Ordinary Shares, as applicable, payments to be issued to such Company Shareholder at made by wire transfer. For purposes of this Agreement, “Equityholders” means the Acquisition Closing; and (f) an initial list (which may, for the avoidance of doubt, be amended by the Company in its sole discretion) setting forth, with respect to each Earnout Shareholder (as defined below), the name and address of such anticipated Earnout Shareholder, and the Pro Rata Portion Shareholders (as defined below) of the Earnout Shares to be issued to such Earnout Shareholder after the Closing Date in accordance with Section 4.6(b) below, as applicable. From and after delivery of the Company Closing Statement until the Acquisition Closing, the Company shall (x) cooperate with and provide SPAC and its representatives all information reasonably requested by SPAC or any of its representatives and within the Company’s or its representatives’ possession or control in connection with SPAC’s review of the Company Closing Statement and (y) consider in good faith any comments to the Company Closing Statement provided by SPAC, and the Company shall revise such Company Closing Statement to incorporate any mutually agreeable changes given such comments.
(b) As a condition to receiving the PubCo Ordinary Shares, and at or as promptly as practicable following the Acquisition Merger Effective Time, PubCo shall send to each Company Shareholder a letter of transmittal for use in such exchange, in a form reasonably acceptable to the Company and SPAC, a letter of transmittal for use in such exchange (a “Company Letter of Transmittal”).
(c) Notwithstanding any other provision of this Section 4.4, any obligation on PubCo under this Agreement to issue PubCo Ordinary Shares to (i) SPAC Shareholders entitled to PubCo Ordinary Shares or (ii) Company Shareholders entitled to receive PubCo Ordinary Shares shall be satisfied by PubCo issuing such PubCo Ordinary Shares directly to the holders entitled thereto by entering such holders on the register of members maintained by PubCo (or its share registrar) for the PubCo Ordinary Shares.
(d) Each SPAC Shareholder shall be entitled to receive such number of PubCo Ordinary Shares as calculated pursuant to Section 4.1(c) as soon as reasonably practicable after the First SPAC Merger Effective Time.
(e) Each Company Shareholder shall be entitled to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b), as soon as reasonably practicable after the Acquisition Merger Effective Time, but subject to the delivery to PubCo of the following items prior thereto: (i) the certificate(s), if any, representing such Company Shares (“Company Certificates” and together with the SPAC Certificates, the “Shareholder Certificates” (or a Lost Certificate Affidavit)) and (ii) a properly completed and duly executed Company Letter of Transmittal (if required) (the documents to be submitted to PubCo pursuant to this sentence may be referred to herein collectively as the “Transmittal Documents”). Until so surrendered, each such Company Certificate shall represent after the Acquisition Merger Effective Time for all purposes only the right to receive such number of PubCo Ordinary Shares, as the case may be, as calculated pursuant to Section 4.3(a) and Section 4.3(b) (as evidenced by the Company Certificate).
(f) If any PubCo Ordinary Share is to be delivered or issued to a Person other than the Person in whose name the surrendered Shareholder Certificate is registered immediately prior to the First SPAC Merger Effective Time or Acquisition Merger Effective Time, as applicable, it shall be a condition to such delivery that (i) in the case of Company Shares, the transfer of such Company Shares shall have been permitted in accordance with the terms of the Organizational Documents of the Company and in case of SPAC Ordinary Shares, the transfer of such SPAC Ordinary Shares shall have been permitted in accordance with the Organizational Documents of SPAC, (ii) the recipient of such PubCo Ordinary Share, or the Person in whose name such PubCo Ordinary Share is delivered or issued, shall have already executed and delivered duly executed counterparts to the applicable Transmittal Documents as are reasonably deemed necessary by PubCo and (iii) the Person requesting such delivery shall have paid to PubCo any transfer or other Taxes required as a result of such delivery to a Person other than the registered holder of such Shareholder Certificate, or establish to the satisfaction of PubCo that such Tax has been paid or is not payable.
(g) Notwithstanding anything to the contrary contained herein, in the event that any Shareholder Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Shareholder Certificate to PubCo, the Company Shareholder may instead deliver to PubCo an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to PubCo (a “Lost Certificate Affidavit”), which at the reasonable discretion of PubCo may include a requirement that the owner of such lost, stolen or destroyed Shareholder Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against PubCo, SPAC or the Surviving Company with respect to the Company Shares or SPAC Ordinary Shares, as applicable, represented by the Shareholder Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly executed and delivered in accordance with this Section 4.4(g) shall, unless the context otherwise requires, be treated as a Shareholder Certificate for all purposes of this Agreement.
(h) After the Acquisition Merger Effective Time, the register of members of the Company shall be closed, and thereafter there shall be no further registration on the register of members of the Surviving Company of transfers of Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time. After the First SPAC Merger Effective Time, the register of members of SPAC shall be closed, and thereafter there shall be no further registration on the register of members of SPAC of transfers of SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time. No dividends or other distributions declared or made after the date of this Agreement with respect to PubCo Ordinary Shares with a record date after the Acquisition Merger Effective Time (in the case of Company Shares) or the First SPAC Merger Effective Time (in the case of SPAC Ordinary Shares) will be paid to the holders of any Company Shares that were issued and outstanding immediately prior to the Acquisition Merger Effective Time or SPAC Ordinary Shares that were issued and outstanding immediately prior to the First SPAC Merger Effective Time (as applicable) in either case until the Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of record of such Company Shares or SPAC Ordinary Shares (as applicable) shall have provided the applicable Transmittal Documents in accordance with Section 4.4(d)Common Stock, which holders are listed on Schedule I attached hereto.
Appears in 1 contract
Samples: Merger Agreement (PQ Systems INC)
