Common use of Payment Spreadsheet Clause in Contracts

Payment Spreadsheet. At least two (2) Business Days prior to the Closing Date, the Company shall deliver to Acquiror a spreadsheet, certified on behalf of the Company’s Chief Executive Officer, setting forth the following information, in a form and substance reasonably satisfactory to Acquiror and accompanied by documentation reasonably satisfactory to Acquiror in support of the information set forth therein (the “Payment Spreadsheet”): (i) a detailed calculation of the Total Closing Consideration and each of the components and subcomponents thereof; (ii) a detailed calculation of the Total Share Number and the Cash Share Number and each of the components and subcomponents thereof; (iii) a detailed calculation of the Stock Award Exchange Ratio and each of the components and subcomponents thereof; provided, however, that the calculation for Acquiror Stock Price shall be provided to the Company by Acquiror; (iv) a detailed calculation of the Per Share Consideration, the Per Share Escrow & Expense Contribution, and the Per Share Closing Cash Consideration, and each of the components and subcomponents of the foregoing; (v) a detailed calculation of the Per Share Indemnity Escrow Release Consideration, and each of the components and subcomponents of the foregoing, assuming full release of the Indemnity Escrow Fund; (vi) a detailed calculation of the Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (vii) with respect to each Stockholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Stockholder (if available); (B) whether such Stockholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the number, class and series of all shares of Company Capital Stock held by such Stockholder and the respective certificate or other identifying numbers of all Company Stock Certificates or Company Book-Entries evidencing all such shares; (D) the date of issuance of such shares of Company Capital Stock and the date of acquisition of such shares of Company Capital Stock by such Stockholder, and the consideration paid to the Company for such issuance (on a per share and aggregate basis) and, if such shares were not acquired by issuance from the Company, the transferee of such shares, and, if Known, the consideration paid by the holder thereof for such shares (on a per share and aggregate basis); (E) the identification of any shares of Company Capital Stock that were (x) acquired through the exercise of an option, whether such option was a nonstatutory option or an incentive stock option as defined in Section 422 of the Code, the date of grant of such option, the vesting schedule of such option, and the date of exercise of such option, or (y) issued as Company Restricted Stock, the date of grant of such shares of Company Restricted Stock, the vesting schedule of such shares of Company Restricted Stock (F) the number of any such shares that are Dissenting Shares; (G) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Stockholder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate and book-entry-by-book-entry basis and in the aggregate), gross and net of such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (I) such Stockholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Stockholder executed and delivered a Joinder Agreement and such Stockholder’s Pro Rata Portion; (K) with respect to each holder of shares of Company Capital Stock issued on or after January 1, 2011 -9- or any other security that, in each case, is a “covered security” under Treasury Regulations Section 1.6045-1(a)(15), the cost basis of such shares or securities; and (L) whether such Stockholder is a Withholding Securityholder with respect to such Company Capital Stock; (viii) with respect to each Optionholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Optionholder (if available); (B) whether such Optionholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the grant date and expiration date of each Company Option held by such Optionholder; (D) whether each such Company Option was granted pursuant to the Plans; (E) the vesting schedule (including all acceleration provisions) applicable to each such Company Option and the extent to which each such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (F) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Option immediately prior to the Effective Time; (G) whether each such Company Option is a Vested Company Option or an Unvested Company Option and an In-the-Money Company Option or an Out-of-the-Money Company Option; (H) whether each such Company Options qualifies as incentive stock options as defined in Section 422 of the Code or nonstatutory stock options; (I) such Optionholder’s Loan Repayment Amount, if any, and whether any Taxes are required to be withheld; (J) if a Vested Company Option, the aggregate Per Share Closing Cash Consideration such Optionholder is entitled to receive pursuant to Section 1.3(c)(i) (on an option-by-option basis and in the aggregate), gross and net of such Optionholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (K) if an Unvested Company Option, the aggregate number of shares of Acquiror Common Stock subject to an Assumed Company Option, the per share exercise price of such Assumed Company Option, and the vesting schedule (including number of shares vesting per vesting period) of such Assumed Company Option; (L) if a Vested Company Option, such Optionholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (M) whether such Optionholder executed and delivered a Joinder Agreement and such Optionholder’s Pro Rata Portion; and (N) whether such Optionholder is a Withholding Securityholder with respect to such Company Options; (ix) with respect to each Warrantholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Warrantholder (if available); (B) whether such Warrantholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the issue date and expiration date of each Company Warrant held by such Warrantholder; (D) the vesting schedule (including all acceleration provisions) applicable to each such Company Warrant and the extent to which each such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (E) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Warrant immediately prior to the Effective Time; (F) whether each such Company Warrant is an In-the-Money Company Warrant or an Out-of-the-Money Company Warrant; (G) such Warrantholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Warrantholder is entitled to receive pursuant to Section 1.3(d)(i) (on a warrant-by-warrant basis and in the aggregate), gross and net of such Warrantholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (I) such Warrantholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Warrantholder executed and delivered a Joinder Agreement and such Warrantholder’s Pro Rata Portion; and (K) whether such Warrantholder is a Withholding Securityholder with respect to such Company Warrant; (x) with respect to each recipient of a Promised Option: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such recipient of a Promised Option; (B) the number of shares of Company Common Stock subject of such Promised Option and that portion of the Promised Option Value attributable to such shares; (C) the number of shares of Acquiror Common Stock subject to such recipient’s Acquiror RSU Award to be granted (assuming such recipient is a Continuing Employee); and (D) the vesting schedule (including number of shares vesting per vesting period) for such Acquiror RSU Award; (xi) wire or other payment instructions for all amounts to be paid by Acquiror in accordance with this Agreement, including any Third Party Expenses and Closing Indebtedness that Acquiror is to pay, or cause to be paid, following the Closing on the Company’s behalf; and (xii) such other information reasonably requested by Acquiror in connection with facilitating the payments contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Pluralsight, Inc.)

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Payment Spreadsheet. (a) At least two (2) three Business Days prior to the scheduled Closing Date, the Company shall deliver a payment spreadsheet (the “Payment Spreadsheet”) in a form reasonably acceptable to Acquiror a spreadsheetBuyer and the Paying Agent, certified on behalf as true, correct and complete by the Chief Executive Officer and the Chief Financial Officer of the Company’s Chief Executive OfficerCompany in each of their respective capacity as such, setting forth the following information, in a form and substance reasonably satisfactory to Acquiror and accompanied by documentation reasonably satisfactory to Acquiror in support of the information set forth therein (the “Payment Spreadsheet”):: (i) the calculation of Total Consideration, including a detailed separate line item for each adjustment thereto in accordance with the definition of “Total Consideration” hereunder (including the Company Net Working Capital, the Net Working Capital Surplus, if any, the Net Working Capital Shortfall, if any, the Closing Cash, the Closing Indebtedness, the unpaid Transaction Expenses, and the resulting calculation of the Total Closing Consideration and each of (the components and subcomponents thereof“Estimated Total Consideration”); (ii) a detailed calculation of the Total Per Share Number Consideration and the Cash Share Number and each of the components and subcomponents thereofPer Option Consideration; (iii) a detailed calculation of the Stock Award Exchange Ratio and each of the components and subcomponents thereof; provided, however, that the calculation for Acquiror Stock Price shall be provided to the Company by Acquiror; (iv) a detailed calculation of the Per Share Consideration, the Per Share Escrow & Expense Contribution, and the Per Share Closing Cash Consideration, and each of the components and subcomponents of the foregoing; (v) a detailed calculation of the Per Share Indemnity Escrow Release Consideration, and each of the components and subcomponents of the foregoing, assuming full release of the Indemnity Escrow Fund; (vi) a detailed calculation of the Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (vii) with respect to each Stockholder: Company Shareholder (other than Specified Individuals), (A) such Person’s address and, if available to the nameCompany, address of recordcorporate I.D. number, e-mail address personal I.D. number, social security number (if availableor tax identification number, as applicable), jurisdiction of Tax residence of such Stockholder (if available); (B) whether such Stockholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the number, class and series of all shares of Company Capital Stock Shares held by such Stockholder Person and whether such shares are Company 102 Shares, (C) the respective certificate or other identifying numbers of all Company Stock Certificates or Company Book-Entries evidencing all number(s) representing such shares; , (D) the date portion of issuance of the Closing Payment Fund to be paid to such shares Company Shareholder at the Closing in respect of Company Capital Shares (separated between the Aggregate Stock Consideration and the date of acquisition of such shares of Company Capital Stock by such StockholderAggregate Cash Consideration), and the consideration paid to the Company for such issuance (on a per share and aggregate basis) and, if such shares were not acquired by issuance from the Company, the transferee of such shares, and, if Known, the consideration paid by the holder thereof for such shares (on a per share and aggregate basis); (E) the identification of any shares of such Company Capital Stock that were (x) acquired through the exercise of an option, whether such option was a nonstatutory option or an incentive stock option as defined in Section 422 Shareholder’s Pro Rata Share of the Code, the date of grant of such option, the vesting schedule of such option, Escrow Amount expressed as a percentage and the date of exercise of such option, or (y) issued as Company Restricted Stock, the date of grant of such shares of Company Restricted Stock, the vesting schedule of such shares of Company Restricted Stock a Dollar amount and (F) the number of any such shares that are Dissenting Shares; (G) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Stockholder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate and book-entry-by-book-entry basis and in the aggregate), gross and net of such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (I) such Stockholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Stockholder executed and delivered a Joinder Agreement and such StockholderCompany Shareholder’s Pro Rata Portion; Share of the Representative Expense Amount expressed as a percentage and a Dollar amount; (Kiv) with respect to each holder of shares of a Company Capital Stock issued on or after January 1Option, 2011 -9- or any other security that, in each case, is a “covered security” under Treasury Regulations Section 1.6045-1(a)(15), the cost basis of such shares or securities; and (L) whether such Stockholder is a Withholding Securityholder with respect to such Company Capital Stock; (viii) with respect to each Optionholder: (A) such Person’s address and, if available to the nameCompany, address of recordpersonal I.D. number, e-mail address social security number (if availableor tax identification number, as applicable), jurisdiction of Tax residence of such Optionholder (if available); (B) whether such Optionholder is an Employee and the nature number of any such relationship (including the entity with which such Employee has a relationship); (C) the grant date and expiration date of Company Shares underlying each Company Option held by such Optionholder; Person, (C) the respective exercise price per share of such Company Option, (D) the respective grant date(s) of such Company Option, (E) the respective vesting arrangement(s), including with respect to any Unvested Company Options or Promised Company Option, (F) whether each such Company Option was granted pursuant as an incentive stock option or a non-qualified stock (as applicable), (G) with respect to any Company Option held by an Israeli employee, officer, director or consultant of the Plans; (E) the vesting schedule (including all acceleration provisions) applicable to each Company, a description of whether such Company Option was granted under Section 102 or Section 3(i) of the Israel Tax Ordinance and with respect to the extent Company 102 Options whether an election was made to which each treat such Company Option is vested as under the capital gain route or ordinary income route, (H) in the case of immediately prior Vested Company Options, the portion of the Closing Payment Fund to be paid to the Effective Time holder at Closing (taking into account any Company Option separated between the Aggregate Stock Consideration and Aggregate Cash Consideration), (I) such holder’s Pro Rata Share of the Escrow Amount (as applicable) expressed as a percentage and Dollar amount, and (J) such holder’s Pro Rata Share of the Representative Expense Amount (as applicable) expressed as a percentage and Dollar amount; (v) with respect to each Specified Individual (A) such Person’s address and, if available to the Company, personal I.D. number, social security number (or portion thereof) thattax identification number, as a result of the Merger will accelerate in full and no longer be subject to any further vestingapplicable), right of repurchase, risk of forfeiture or other such conditions); (FB) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each Shares held by such Company Option immediately prior to the Effective Time; (G) whether each such Company Option is a Vested Company Option or an Unvested Company Option and an In-the-Money Company Option or an Out-of-the-Money Company Option; (H) whether each such Company Options qualifies as incentive stock options as defined in Section 422 of the Code or nonstatutory stock options; (I) such Optionholder’s Loan Repayment AmountPerson, if any, and whether any Taxes are required to be withheld; (J) if a Vested Company Option, the aggregate Per Share Closing Cash Consideration such Optionholder is entitled to receive pursuant to Section 1.3(c)(i) (on an option-by-option basis and in the aggregate), gross and net of such Optionholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (K) if an Unvested Company Option, the aggregate number of shares of Acquiror Common Stock subject to an Assumed Company Option, the per share exercise price of such Assumed Company Option, and the vesting schedule (including number of shares vesting per vesting period) of such Assumed Company Option; (L) if a Vested Company Option, such Optionholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (M) whether such Optionholder executed and delivered a Joinder Agreement and such Optionholder’s Pro Rata Portion; and (N) whether such Optionholder is a Withholding Securityholder with respect to such Company Options; (ix) with respect to each Warrantholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Warrantholder (if available); (B) whether such Warrantholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the issue date and expiration date of each Company Warrant held by respective certificate number(s) representing such Warrantholder; shares, (D) the vesting schedule (including all acceleration provisions) applicable portion of the Closing Payment Fund to each be paid to such Company Warrant and Shareholder at the extent to which each Closing in respect of such Company Warrant is vested Shares (separated between the Aggregate Stock Consideration and Aggregate Cash Consideration), (E) such Company Shareholder’s Pro Rata Share of the Escrow Amount expressed as a percentage and a Dollar amount, (F) such Company Shareholder’s Pro Rata Share of immediately the Representative Expense Amount expressed as a percentage and a Dollar amount; and (G) the Holdback Amount (separated between the portion of cash and portion of the Buyer Ordinary Share). (b) In the event that any information set forth in the Payment Spreadsheet becomes inaccurate at any time prior to the Effective Time (taking into account any Closing, the Company Warrant (or portion thereofshall deliver a revised Payment Spreadsheet, together with a new certification consistent with Section 8.8(a) that, as a result of the Merger will accelerate in full and no longer whereupon such revised Payment Spreadsheet shall be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (E) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Warrant immediately prior to the Effective Time; (F) whether each such Company Warrant is an In-the-Money Company Warrant or an Out-of-the-Money Company Warrant; (G) such Warrantholder’s Loan Repayment Amount, if any, and whether Taxes are required deemed to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Warrantholder is entitled to receive pursuant to Section 1.3(d)(i) (on a warrant-by-warrant basis and in the aggregate), gross and net of such Warrantholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (I) such Warrantholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Warrantholder executed and delivered a Joinder Agreement and such Warrantholder’s Pro Rata Portion; and (K) whether such Warrantholder is a Withholding Securityholder with respect to such Company Warrant; (x) with respect to each recipient of a Promised Option: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such recipient of a Promised Option; (B) the number of shares of Company Common Stock subject of such Promised Option and that portion of the Promised Option Value attributable to such shares; (C) the number of shares of Acquiror Common Stock subject to such recipient’s Acquiror RSU Award to be granted (assuming such recipient is a Continuing Employee); and (D) the vesting schedule (including number of shares vesting per vesting period) for such Acquiror RSU Award; (xi) wire or other payment instructions “Payment Spreadsheet” for all amounts to be paid by Acquiror in accordance with this Agreement, including any Third Party Expenses purposes of and Closing Indebtedness that Acquiror is to pay, or cause to be paid, following the Closing on the Company’s behalf; and (xii) such other information reasonably requested by Acquiror in connection with facilitating the payments contemplated by under this Agreement. (c) The Company acknowledges and agrees that the Paying Agent, Escrow Agent, Buyer and its agents shall be entitled to rely on the Payment Spreadsheet for purposes of making any payments hereunder.

Appears in 1 contract

Samples: Share Purchase Agreement (JFrog LTD)

Payment Spreadsheet. At least two four (24) Business Days prior to the Closing Date(with an update to be delivered on the day prior to the Closing based on the updated Parent Trading Price), the Company shall deliver to Acquiror Parent a spreadsheet, certified on behalf of spreadsheet (the Company’s Chief Executive Officer, “Payment Spreadsheet”) setting forth the following information, in a form and substance reasonably satisfactory to Acquiror Parent and accompanied by documentation reasonably satisfactory to Acquiror Parent in support of the information set forth therein (the “Payment Spreadsheet”):therein: (i) a detailed calculation of the Total Closing Common Consideration, the Total Common Cash Consideration, the Total Common Stock Consideration, the Total Consideration and each of the all components and subcomponents thereof; (ii) a detailed calculation of the Total Share Number and the Cash Share Number and each of the components and subcomponents thereof; (iii) a detailed calculation of the Stock Award Exchange Ratio and each of the components and subcomponents thereof; providedParent Trading Price, however, that the calculation for Acquiror Stock Price shall be provided to the Company by Acquiror; (iv) a detailed calculation of the Per Share Common Cash Consideration, the Per Share Escrow & Expense ContributionCommon Stock Consideration, the Per Share Series B Liquidation Stock Consideration, the Per Share Series C Liquidation Stock Consideration, the Series B Aggregate Liquidation Preference, and the Per Share Closing Cash Consideration, and each of the components and subcomponents of the foregoingSeries C Aggregate Liquidation Preference; (v) a detailed calculation of the Per Share Indemnity Escrow Release Consideration, and each of the components and subcomponents of the foregoing, assuming full release of the Indemnity Escrow Fund; (vi) a detailed calculation of the Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (viiiii) with respect to each Stockholder: (A) the name, name and address of recordsuch holder on record with the Company and, if available, the e-mail address (if available), jurisdiction of Tax residence of such Stockholder (if available); holder, (B) whether such Stockholder holder is an Employee a current or former employee of the Company and the nature of any whether such relationship (including the entity with which such Employee has holder is a relationship); Key Employee, (C) the number, class and series of all shares of Company Capital Stock held by such Stockholder holder and the respective certificate or other identifying numbers of all Company Stock Certificates or Company Book-Entries certificates evidencing all such shares; , (D) the date of issuance of such shares of Company Capital Stock and the date of acquisition of such shares of Company Capital Stock by such Stockholder, and the consideration paid with respect to the Company for such issuance (on a per share and aggregate basis) and, if such shares were not acquired by issuance from the Company, the transferee of such shares, and, if Known, the consideration paid by the holder thereof for such shares (on a per share and aggregate basis); (E) the identification of any shares of Company Capital Stock held by such Stockholder that were (x) acquired through issued on or after January 1, 2011 and that are “covered securities” within the exercise meaning of an option, whether such option was a nonstatutory option or an incentive stock option as defined in Section 422 of the CodeTreasury Regulations §1.6045-1(a)(15), the date of grant acquisition of all such shares and the adjusted tax basis of such optionshares, the vesting schedule of such option, and the date of exercise of such option, or (y) issued as Company Restricted Stock, the date of grant of such shares of Company Restricted Stock, the vesting schedule of such shares of Company Restricted Stock (FE) the number of any such shares that are Dissenting Shares; , (F) whether any Taxes are required to be withheld in accordance with Section 2.4 from the consideration that such holder is entitled to receive pursuant to Section 1.3(b)(i) or Section 1.3(b)(ii) by reason of the performance of services by such holder, (G) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration cash consideration that such Stockholder holder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate and book-entry-by-book-entry basis and in the aggregate), gross (I) the stock consideration that such holder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate basis and in the aggregate), (J) the aggregate Merger Consideration that such holder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate basis and in the aggregate), net of (x) the amount of cash to be held by the Escrow Agent as part of the Escrow Amount pursuant to Section 2.3(b)(ii), (y) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required (z) the amount of cash to be withheld; (I) such Stockholder’s aggregate Per Share Indemnity Escrow Release Consideration and deposited into the Per Share Representative Expense Fund Release Amounton behalf of such holder pursuant to Section 2.3(b)(iii), in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (JK) whether such Stockholder executed holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 7.9) and delivered a Joinder Agreement (L) the amount of Parent Class A Common Stock to be held by the Escrow Agent as part of the Escrow Amount and the amount of cash to be retained by Parent as the Escrow Amount and the amount of cash to be deposited into the Representative Expense Fund on behalf of such holder pursuant to Section 2.3(b)(ii), Article IX and Section 2.3(b)(iii), respectively and such Stockholder’s Pro Rata PortionPortion in the Escrow Amount and the Representative Expense Fund; and (Kiv) with respect to each holder of shares of Company Capital Stock issued on or after January 1, 2011 -9- or any other security that, in each case, is a “covered security” under Treasury Regulations Section 1.6045-1(a)(15), the cost basis of such shares or securities; and (L) whether such Stockholder is a Withholding Securityholder with respect to such Company Capital Stock; (viii) with respect to each OptionholderOption: (A) the name, name and address of recordthe holder thereof on record with the Company and, if available, the e-mail address (if available), jurisdiction of Tax residence of such Optionholder (if available); holder, (B) whether such Optionholder Company Option is an Employee and the nature of any such relationship (including the entity with which such Option or a Non-Employee has a relationship); Option, (C) the grant date and expiration date of each Company Option held by such Optionholder; thereof, (D) whether each such Company Option was granted pursuant to the Plans; Plan, (E) the vesting schedule (including all acceleration provisions) applicable to each such Company Option and the extent to which each such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the First Merger and pursuant to this Agreement will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); , (F) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Option immediately prior to the Effective Time; Closing, (G) whether each such holder is a Continuing Employee or a Non-Continuing Employee, (H) the Pro Rata Portion of the holder of such Company Option, (I) the amount of cash to be retained by Parent as the Escrow Amount and the amount of cash to be deposited into the Representative Expense Fund on behalf of the holder of such Company Option pursuant to Section 2.3(b)(ii) and Section 2.3(b)(iii), respectively, and (J) the Option Consideration that such holder is a Vested Company Option or an Unvested Company Option and an In-the-Money Company Option or an Out-of-the-Money Company Option; (H) whether each such Company Options qualifies as incentive stock options as defined entitled to receive in accordance with Section 422 of the Code or nonstatutory stock options; (I) such Optionholder’s Loan Repayment Amount1.3(c)(i), if any, and whether any Taxes are required net of the amount of cash to be withheld; (J) if a Vested Company Option, retained by Parent as Escrow Amount and the aggregate Per Share Closing Cash Consideration amount of cash to be deposited into the Representative Expense Fund on behalf of such Optionholder is entitled holder pursuant to receive pursuant to Section 1.3(c)(i2.3(b)(ii) (on an option-by-option basis and in the aggregateSection 2.3(b)(iii), gross and net of such Optionholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (K) if an Unvested Company Option, the aggregate number of shares of Acquiror Common Stock subject to an Assumed Company Option, the per share exercise price of such Assumed Company Option, and the vesting schedule (including number of shares vesting per vesting period) of such Assumed Company Option; (L) if a Vested Company Option, such Optionholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (M) whether such Optionholder executed and delivered a Joinder Agreement and such Optionholder’s Pro Rata Portion; and (N) whether such Optionholder is a Withholding Securityholder with respect to such Company Options; (ix) with respect to each Warrantholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Warrantholder (if available); (B) whether such Warrantholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the issue date and expiration date of each Company Warrant held by such Warrantholder; (D) the vesting schedule (including all acceleration provisions) applicable to each such Company Warrant and the extent to which each such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (E) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Warrant immediately prior to the Effective Time; (F) whether each such Company Warrant is an In-the-Money Company Warrant or an Out-of-the-Money Company Warrant; (G) such Warrantholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Warrantholder is entitled to receive pursuant to Section 1.3(d)(i) (on a warrant-by-warrant basis and in the aggregate), gross and net of such Warrantholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (I) such Warrantholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Warrantholder executed and delivered a Joinder Agreement and such Warrantholder’s Pro Rata Portion; and (K) whether such Warrantholder is a Withholding Securityholder with respect to such Company Warrant; (x) with respect to each recipient of a Promised Option: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such recipient of a Promised Option; (B) the number of shares of Company Common Stock subject of such Promised Option and that portion of the Promised Option Value attributable to such shares; (C) the number of shares of Acquiror Common Stock subject to such recipient’s Acquiror RSU Award to be granted (assuming such recipient is a Continuing Employee); and (D) the vesting schedule (including number of shares vesting per vesting period) for such Acquiror RSU Award; (xi) wire or other payment instructions for all amounts to be paid by Acquiror in accordance with this Agreement, including any Third Party Expenses and Closing Indebtedness that Acquiror is to pay, or cause to be paid, following the Closing on the Company’s behalf; and (xii) such other information reasonably requested by Acquiror in connection with facilitating the payments contemplated by this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Square, Inc.)

Payment Spreadsheet. At least two (2) Business Days prior Prior to the Closing DateClosing, the Company shall deliver to Acquiror Parent a spreadsheet, certified on behalf of the Company’s Chief Executive Officer, setting forth the following information, in a form and substance reasonably satisfactory to Acquiror and accompanied by documentation reasonably satisfactory to Acquiror in support of the information set forth therein payment spreadsheet (the “Payment Spreadsheet”):) setting forth: (i) a detailed the amount and calculation of the Total Closing Consideration and each of the components and subcomponents thereofTotal Common Closing Merger Consideration; (ii) a detailed the amount and calculation of the Total Share Number Series B Preferred Liquidation Preference and the Cash Share Number and each of the components and subcomponents thereofTotal Series C Preferred Liquidation Preference; (iii) a detailed the amount and calculation of the Stock Award Exchange Ratio Per Share Series B Preferred Liquidation Preference and each of the components and subcomponents thereof; provided, however, that the calculation for Acquiror Stock Price shall be provided to the Company by AcquirorPer Share Series C Preferred Liquidation Preference; (iv) a detailed the amount and calculation of the Per Share Consideration, the Per Share Escrow & Expense Contribution, Common Closing Merger Consideration and the Per Share Closing Cash Common Earnout Consideration, and each of the components and subcomponents of the foregoing; (v) a detailed calculation the number of the Per Share Indemnity Escrow Release Consideration, and each shares of the components and subcomponents of the foregoing, assuming full release of the Indemnity Escrow FundCompany Series C Preferred Stock; (vi) a detailed calculation the number of the Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000)Total Outstanding Shares; (vii) the amount of Indebtedness of the Company as of the close of business on the Closing Date; (viii) the amount of Third Party Expenses; (ix) the Per Share Common Earnout Cash Consideration; (x) the Per Share Common Earnout Stock Consideration; (xi) the Per Share Common Escrow Consideration; and (xii) with respect to each Stockholder: (A) the name, name and address of recordsuch holder, e-mail address (if available), jurisdiction of Tax residence of such Stockholder (if available); (B) whether such Stockholder holder is an Employee and a current or former employee of the nature of Company (or any such relationship (including the entity with which such Employee has a relationshipSubsidiary); , (C) the number, class and series of all shares of Company Capital Stock held by such Stockholder holder and the respective certificate or other identifying numbers of all Company Stock Certificates or Company Book-Entries evidencing all such shares; number, (D) the date of issuance of such shares of Company Capital Stock and the date of acquisition of such shares of Company Capital Stock by such Stockholder, and the consideration paid to the Company for such issuance (on a per share and aggregate basis) and, if such shares were not acquired by issuance from the Company, the transferee of such shares, and, if Known, the consideration paid by the holder thereof for such shares (on a per share and aggregate basis); (E) the identification of any shares of Company Capital Stock that were (x) acquired through the exercise of an option, whether such option was a nonstatutory option or an incentive stock option as defined in Section 422 of the Code, the date of grant of such option, the vesting schedule of such option, and the date of exercise of such option, or (y) issued as Company Restricted Stock, the date of grant of such shares of Company Restricted Stock, the vesting schedule of such shares of Company Restricted Stock (F) the number of any such shares that are Dissenting Shares; (G) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Stockholder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate and book-entry-by-book-entry basis and in the aggregate), gross and net of such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (I) such Stockholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Stockholder executed and delivered a Joinder Agreement and such Stockholder’s Pro Rata Portion; (K) with respect to each holder of shares of Company Capital Stock issued on or after January 1, 2011 -9- or any other security that, in each case, is that would be deemed a “covered security” under Treasury Regulations Section 1.6045-1(a)(15), the cost basis of such shares or securities; and (L) whether such Stockholder is a Withholding Securityholder with respect to such Company Capital Stock; (viii) with respect to each Optionholder: (A) the nameshares, address of record, e-mail address (if available), jurisdiction of Tax residence of such Optionholder (if available); (B) whether such Optionholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the grant date and expiration date of each Company Option held by such Optionholder; (D) whether each such Company Option was granted pursuant to the Plans; (E) the vesting schedule (including all acceleration provisions) applicable to each cash consideration that such Company Option and the extent to which each such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (F) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Option immediately prior to the Effective Time; (G) whether each such Company Option is a Vested Company Option or an Unvested Company Option and an In-the-Money Company Option or an Out-of-the-Money Company Option; (H) whether each such Company Options qualifies as incentive stock options as defined in Section 422 of the Code or nonstatutory stock options; (I) such Optionholder’s Loan Repayment Amount, if any, and whether any Taxes are required to be withheld; (J) if a Vested Company Option, the aggregate Per Share Closing Cash Consideration such Optionholder holder is entitled to receive pursuant to Section 1.3(c)(i1.6(b) and may be entitled to receive pursuant to Section 1.6(c) (on an optiona certificate-by-option certificate basis and in the aggregate, net of the 2015 Corrective Withholding (as applicable)), (F) the stock consideration that such holder may be entitled to receive pursuant to Section 1.6(c) (on a certificate-by-certificate basis and in the aggregate), gross and net (G) the Pro Rata Portion of such Optionholder’s Loan Repayment Amountholder, if any, exercise price, and whether Taxes are required (H) the amount of cash to be withheld; (K) if an Unvested Company Option, deposited into the aggregate number of shares of Acquiror Common Stock subject to an Assumed Company Option, the per share exercise price of such Assumed Company Option, Escrow Fund and the vesting schedule (including number amount of shares vesting per vesting period) of such Assumed Company Option; (L) if a Vested Company Option, such Optionholder’s aggregate Per Share Indemnity cash to be deposited in the Representative Escrow Release Consideration and the Per Share Expense Fund Release AmountFund, in each case, assuming full release on behalf of the Indemnity Escrow Fund and Expense Fund, respectivelysuch holder pursuant to this Agreement, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (MI) whether such Optionholder executed and delivered a Joinder Agreement and such Optionholder’s Pro Rata Portion; and (N) whether such Optionholder is a Withholding Securityholder with respect the net cash amounts to be paid to such Company Options; (ix) with respect to each Warrantholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Warrantholder (if available); (B) whether such Warrantholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the issue date and expiration date of each Company Warrant held by such Warrantholder; (D) the vesting schedule (including all acceleration provisions) applicable to each such Company Warrant and the extent to which each such Company Warrant is vested as of immediately prior holder at Closing after giving effect to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (E) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Warrant immediately prior to the Effective Time; (F) whether each such Company Warrant is an In-the-Money Company Warrant or an Out-of-the-Money Company Warrant; (G) such Warrantholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; foregoing clause (H) the aggregate Per Share Closing Cash Consideration such Warrantholder is entitled to receive pursuant to Section 1.3(d)(i) (on a warrantcertificate-by-warrant certificate basis and in the aggregate), gross and net of such Warrantholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (I) such Warrantholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether the amount of any withholding due on any payment (assuming, solely for purposes of preparing the Payment Spreadsheet, that such Warrantholder executed and Stockholder has delivered a Joinder Agreement and such Warrantholder’s Pro Rata Portion; to the Exchange Agent the appropriate Form W-8, Form W-9 or similar tax form indicating that no withholding is required) and (K) whether such Warrantholder is a Withholding Securityholder with respect to such Company Warrant; (x) with respect to each recipient of a Promised Option: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such recipient of a Promised Option; (B) the number of shares of Company Common Stock subject of such Promised Option and that portion of the Promised Option Value attributable to such shares; (C) the number of shares of Acquiror Common Stock subject to such recipient’s Acquiror RSU Award to be granted (assuming such recipient is a Continuing Employee); and (D) the vesting schedule (including number of shares vesting per vesting period) for such Acquiror RSU Award; (xi) wire or other payment instructions for all amounts to be paid by Acquiror in accordance with this Agreement, including any Third Party Expenses and Closing Indebtedness that Acquiror is to pay, or cause to be paid, following the Closing on the Company’s behalf; and (xii) such other information reasonably requested as required by Acquiror the Exchange Agent in connection with facilitating the payments contemplated by this Agreementform of spreadsheet provided to the Company prior to the date hereof.

Appears in 1 contract

Samples: Merger Agreement (FireEye, Inc.)

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Payment Spreadsheet. At least two (2) three Business Days prior to the Closing DateClosing, the Company shall deliver to Acquiror Parent a spreadsheetspreadsheet in substantially the form of Schedule 2.11 attached hereto (the “Payment Spreadsheet”), duly certified on behalf by the Chief Executive Officer or Chief Operating Officer of the Company’s Chief Executive Officer, setting forth the following information, in a form and substance reasonably satisfactory to Acquiror Parent (and accompanied by documentation reasonably satisfactory to Acquiror in support of consistent with the information set forth therein (the “Payment Spreadsheet”Closing Date Balance Sheet): (i) a detailed the Company’s good faith calculation of the Total Closing Estimated Merger Consideration and each component of the components and subcomponents thereofEstimated Merger Consideration; (ii) a detailed calculation of the Total Share Number and information with respect to the Cash Share Number and each of the components and subcomponents thereofEstimated Company Transaction Costs required by Section 5.4; (iii) a detailed calculation of the Stock Award Exchange Ratio and each of the components and subcomponents thereof; provided, however, that the calculation for Acquiror Stock Price shall be provided information with respect to the Company Estimated Indebtedness as required by Acquiror;Section 5.5; and (iv) a detailed calculation of the Per Share Consideration, the Per Share Escrow & Expense Contribution, and the Per Share Closing Cash Consideration, and each of the components and subcomponents of the foregoing; (v) a detailed calculation of the Per Share Indemnity Escrow Release Consideration, and each of the components and subcomponents of the foregoing, assuming full release of the Indemnity Escrow Fund; (vi) a detailed calculation of the Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (vii) with respect to each StockholderEquityholder and Promised Option Holder as of the Closing Date: (A) the name, address of record, e-mail and (to the extent available) email address (if available), jurisdiction of Tax residence of such Stockholder (if available); Equityholder and Promised Option Holder, (B) whether such Stockholder is an Employee the number and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the number, class and series of all shares of Company Capital Stock Outstanding Shares and Vested Options held by such Stockholder and the respective certificate or other identifying numbers of all Company Stock Certificates or Company Book-Entries evidencing all such shares; Equityholder, (D) the date of issuance of such shares of Company Capital Stock and the date of acquisition of such shares of Company Capital Stock by such Stockholder, and the consideration paid to the Company for such issuance (on a per share and aggregate basis) and, if such shares were not acquired by issuance from the Company, the transferee of such shares, and, if Known, the consideration paid by the holder thereof for such shares (on a per share and aggregate basis); (E) the identification of any shares of Company Capital Stock that were (x) acquired through the exercise of an option, whether such option was a nonstatutory option or an incentive stock option as defined in Section 422 of the Code, the date of grant of such option, the vesting schedule of such option, and the date of exercise of such option, or (y) issued as Company Restricted Stock, the date of grant of such shares of Company Restricted Stock, the vesting schedule of such shares of Company Restricted Stock (F) the number of any such shares that are Dissenting Shares; (G) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (HC) the aggregate Per Share Closing Cash Consideration such allocable to each Stockholder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate and book-entry-by-book-entry basis and in the aggregate), gross and net respect of such Stockholder’s Loan Repayment AmountOutstanding Shares, if any(D) the amount of Vested Option Payments allocable to each Vested Option Holder in respect of such Vested Option Holder’s Vested Options, and whether Taxes are required (E) the amount of the Management Carveout Payment allocable to be withheld; each Management Carveout Participant, (F) the amount of the Promised Option Payment allocable to each Promised Option Holder, (G) each Equityholder’s Applicable Holdback Percentage, (H) each Equityholder’s Applicable Percentage, (I) whether there is any required withholding on account of Taxes with respect to such StockholderEquityholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release portion of the Indemnity Escrow Fund and Expense FundNet Closing Merger Consideration or such Promised Option Holder’s Promised Option Payment, respectivelyand, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Stockholder executed and delivered a Joinder Agreement and such Stockholder’s Pro Rata Portion; (K) with respect to each holder Stockholder, the amount of shares any such withholding with respect to payment for such Stockholder’s Outstanding Shares, and (J) the wire transfer instructions of Company Capital Stock issued such Equityholder and Promised Option Holder with respect to the payments to be made by Parent pursuant to Section 2.11(b). Parent and, following the Closing, the Company, may rely on the instructions of the Representative for distributions of cash and shall have no responsibility or liability with respect thereto. Parent shall make distributions of cash after January 1the Closing to the Equityholders in the same form and in accordance with the same wiring instructions or delivery addresses, 2011 -9- or any other security thatas applicable, as such distributions were made to each such Equityholder in each case, is a “covered security” under Treasury Regulations Section 1.6045-1(a)(15connection with the Closing (as set forth in the Payment Spreadsheet), except as otherwise indicated in any update delivered to Parent by the cost basis Representative to reflect any assignments or other changes in factual information. Upon Parent making each aggregate payment required of such shares or securities; and (L) whether such Stockholder is a Withholding Securityholder it under this Agreement to the Equityholders in accordance with the final Payment Spreadsheet delivered by the Company prior to the Closing as provided herein, Parent shall have fulfilled its obligations with respect to such payments. Parent shall have no liability (whether directly or indirectly through the Company Capital Stock; (viiifollowing the Closing) whatsoever with respect to each Optionholder: (A) the name, address allocation of record, e-mail address (if available), jurisdiction the distribution of Tax residence of such Optionholder (if available); (B) whether such Optionholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the grant date and expiration date of each Company Option held by such Optionholder; (D) whether each such Company Option was granted pursuant to the Plans; (E) the vesting schedule (including all acceleration provisions) applicable to each such Company Option and the extent to which each such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result payments of the Merger will accelerate in full and no longer be subject Consideration among the Equityholders. No party to this Agreement shall take any further vesting, right of repurchase, risk of forfeiture tax or other such conditions); (F) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Option immediately prior position that is contrary to the Effective Time; (G) whether each such Company Option is a Vested Company Option or an Unvested Company Option and an In-the-Money Company Option or an Out-of-the-Money Company Option; (H) whether each such Company Options qualifies as incentive stock options as defined in Section 422 of the Code or nonstatutory stock options; (I) such Optionholder’s Loan Repayment Amount, if any, and whether any Taxes are required to be withheld; (J) if a Vested Company Option, the aggregate Per Share Closing Cash Consideration such Optionholder is entitled to receive pursuant to Section 1.3(c)(i) (on an option-by-option basis and allocations set forth in the aggregate), gross and net of such Optionholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are Payment Spreadsheet unless otherwise required to be withheld; (K) if an Unvested Company Option, the aggregate number of shares of Acquiror Common Stock subject to an Assumed Company Option, the per share exercise price of such Assumed Company Option, and the vesting schedule (including number of shares vesting per vesting period) of such Assumed Company Option; (L) if a Vested Company Option, such Optionholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (M) whether such Optionholder executed and delivered a Joinder Agreement and such Optionholder’s Pro Rata Portion; and (N) whether such Optionholder is a Withholding Securityholder with respect to such Company Options; (ix) with respect to each Warrantholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Warrantholder (if available); (B) whether such Warrantholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the issue date and expiration date of each Company Warrant held by such Warrantholder; (D) the vesting schedule (including all acceleration provisions) applicable to each such Company Warrant and the extent to which each such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (E) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Warrant immediately prior to the Effective Time; (F) whether each such Company Warrant is an In-the-Money Company Warrant or an Out-of-the-Money Company Warrant; (G) such Warrantholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Warrantholder is entitled to receive pursuant to Section 1.3(d)(i) (on a warrant-by-warrant basis and in the aggregate), gross and net of such Warrantholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (I) such Warrantholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Warrantholder executed and delivered a Joinder Agreement and such Warrantholder’s Pro Rata Portion; and (K) whether such Warrantholder is a Withholding Securityholder with respect to such Company Warrant; (x) with respect to each recipient of a Promised Option: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such recipient of a Promised Option; (B) the number of shares of Company Common Stock subject of such Promised Option and that portion of the Promised Option Value attributable to such shares; (C) the number of shares of Acquiror Common Stock subject to such recipient’s Acquiror RSU Award to be granted (assuming such recipient is a Continuing Employee); and (D) the vesting schedule (including number of shares vesting per vesting period) for such Acquiror RSU Award; (xi) wire or other payment instructions for all amounts to be paid by Acquiror in accordance with this Agreement, including any Third Party Expenses and Closing Indebtedness that Acquiror is to pay, or cause to be paid, following the Closing on the Company’s behalf; and (xii) such other information reasonably requested by Acquiror in connection with facilitating the payments contemplated by this AgreementApplicable Law.

Appears in 1 contract

Samples: Merger Agreement (Realpage Inc)

Payment Spreadsheet. At least two (2a) No later than one (1) Business Day prior to the Closing Date, the Company shall deliver to Parent and the Paying Agent a final payment spreadsheet (the "Payment Spreadsheet") setting forth the Company's good faith calculations of the following (in each case, based on the calculation of the Estimated Merger Consideration set forth in the Pre-Closing Statement and the draft Payment Spreadsheet as modified pursuant to Section 4.4(b) below): -49- **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** (i) the calculation of the Estimated Merger Consideration, including each component thereof; (ii) the calculation of the Per Share Common Closing Merger Consideration; (iii) the calculation of the Aggregate Closing Stockholder Proceeds; (iv) the calculations of the Aggregate Closing Option Proceeds, the Estimated Tax Refund Amount, and the Closing Tax Refund Payments; (v) the number of Fully Diluted Shares as of the Effective Time based on the Initial Consideration; (vi) with respect to each Stockholder (A) the name and, if available, address of such Stockholder, (B) the number of shares of Company Capital Stock held by such Stockholder and the certificate numbers in respect thereof, (C) the consideration that such Stockholder is entitled to receive pursuant to Section 1.6(b) (Effect of Merger on Company Capital Stock), (D) the aggregate amount to be deliveredat Closing to such Stockholder, (E) the percentage of any Positive Adjustment and any amounts to be disbursed to Securityholders out of the Adjustment Escrow Fund and/or the Seller Representative Fund (in each case, as applicable) to which each such Stockholder is entitled, (F) the percentage of any Per Share Tax Refund Amount to which each such Stockholder would be entitled under Section 4.13(j) (Transaction Tax Deductions), assuming the Pro Rata Portion as of the Effective Time, and (G) such Stockholder's Pro Rata Portion as of the Effective Time; and (vii) with respect to each Optionholder (A) the name and, if available, address of such holder, (B) the exercise price per share and the number of shares of Company Capital Stock underlying such Company Option immediately prior to the Effective Time, (C) the Option Closing Consideration that such Optionholder is entitled to receive pursuant to Section 1.6(c) (Effect of Merger on Company Options) (subject to Section 1.6(d) (Withholding Taxes)), and, if applicable, t11eClosing Tax Refund Payments that such Optionholder is entitled to receive pursuant to Section 4.13(j) (Transaction Tax Deductions), (D) the aggregate amount to be delivered by the Surviving Corporation following the Closing to such Optionholder, (E) the percentage of any Positive Adjustment and any amounts to be disbursedto Securityholders out of the Adjustment Escrow Fund and/or the Seller Representative Fund (in each case, as applicable) to which each such Optionholder is entitled, (F) the percentage of any Per Share Tax Refund Amount to which each such Optionholder would be entitled under Section 4.13(i) (Transaction Tax Deductions), assuming the Pro Rata Portion as of the Effective Time, and (G) such Optionholder's Pro Rata Portion as of the Effective Time. (b) No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Acquiror a spreadsheet, certified on behalf of the Company’s Chief Executive Officer, setting forth the following information, in a form prepare and substance reasonably satisfactory to Acquiror and accompanied by documentation reasonably satisfactory to Acquiror in support of the information set forth therein (the “Payment Spreadsheet”): (i) a detailed calculation of the Total Closing Consideration and each of the components and subcomponents thereof; (ii) a detailed calculation of the Total Share Number and the Cash Share Number and each of the components and subcomponents thereof; (iii) a detailed calculation of the Stock Award Exchange Ratio and each of the components and subcomponents thereof; provided, however, that the calculation for Acquiror Stock Price shall be provided to the Company by Acquiror; (iv) a detailed calculation of the Per Share Consideration, the Per Share Escrow & Expense Contribution, and the Per Share Closing Cash Consideration, and each of the components and subcomponents of the foregoing; (v) a detailed calculation of the Per Share Indemnity Escrow Release Consideration, and each of the components and subcomponents of the foregoing, assuming full release of the Indemnity Escrow Fund; (vi) a detailed calculation of the Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (vii) with respect to each Stockholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Stockholder (if available); (B) whether such Stockholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the number, class and series of all shares of Company Capital Stock held by such Stockholder and the respective certificate or other identifying numbers of all Company Stock Certificates or Company Book-Entries evidencing all such shares; (D) the date of issuance of such shares of Company Capital Stock and the date of acquisition of such shares of Company Capital Stock by such Stockholder, and the consideration paid to the Company for such issuance (on a per share and aggregate basis) and, if such shares were not acquired by issuance from the Company, the transferee of such shares, and, if Known, the consideration paid by the holder thereof for such shares (on a per share and aggregate basis); (E) the identification of any shares of Company Capital Stock that were (x) acquired through the exercise of an option, whether such option was a nonstatutory option or an incentive stock option as defined in Section 422 of the Code, the date of grant of such option, the vesting schedule of such option, and the date of exercise of such option, or (y) issued as Company Restricted Stock, the date of grant of such shares of Company Restricted Stock, the vesting schedule of such shares of Company Restricted Stock (F) the number of any such shares that are Dissenting Shares; (G) such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Stockholder is entitled to receive pursuant to Section 1.3(b)(i) (on a certificate-by-certificate and book-entry-by-book-entry basis and in the aggregate), gross and net of such Stockholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (I) such Stockholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Stockholder executed and delivered a Joinder Agreement and such Stockholder’s Pro Rata Portion; (K) with respect to each holder of shares of Company Capital Stock issued on or after January 1, 2011 -9- or any other security that, in each case, is a “covered security” under Treasury Regulations Section 1.6045-1(a)(15), the cost basis of such shares or securities; and (L) whether such Stockholder is a Withholding Securityholder with respect to such Company Capital Stock; (viii) with respect to each Optionholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Optionholder (if available); (B) whether such Optionholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the grant date and expiration date of each Company Option held by such Optionholder; (D) whether each such Company Option was granted pursuant to the Plans; (E) the vesting schedule (including all acceleration provisions) applicable to each such Company Option and the extent to which each such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (F) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Option immediately prior to the Effective Time; (G) whether each such Company Option is a Vested Company Option or an Unvested Company Option and an In-the-Money Company Option or an Out-of-the-Money Company Option; (H) whether each such Company Options qualifies as incentive stock options as defined in Section 422 of the Code or nonstatutory stock options; (I) such Optionholder’s Loan Repayment Amount, if any, and whether any Taxes are required to be withheld; (J) if a Vested Company Option, the aggregate Per Share Closing Cash Consideration such Optionholder is entitled to receive pursuant to Section 1.3(c)(i) (on an option-by-option basis and in the aggregate), gross and net of such Optionholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (K) if an Unvested Company Option, the aggregate number of shares of Acquiror Common Stock subject to an Assumed Company Option, the per share exercise price of such Assumed Company Option, and the vesting schedule (including number of shares vesting per vesting period) of such Assumed Company Option; (L) if a Vested Company Option, such Optionholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (M) whether such Optionholder executed and delivered a Joinder Agreement and such Optionholder’s Pro Rata Portion; and (N) whether such Optionholder is a Withholding Securityholder with respect to such Company Options; (ix) with respect to each Warrantholder: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such Warrantholder (if available); (B) whether such Warrantholder is an Employee and the nature of any such relationship (including the entity with which such Employee has a relationship); (C) the issue date and expiration date of each Company Warrant held by such Warrantholder; (D) the vesting schedule (including all acceleration provisions) applicable to each such Company Warrant and the extent to which each such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions); (E) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying each such Company Warrant immediately prior to the Effective Time; (F) whether each such Company Warrant is an In-the-Money Company Warrant or an Out-of-the-Money Company Warrant; (G) such Warrantholder’s Loan Repayment Amount, if any, and whether Taxes are required to be withheld; (H) the aggregate Per Share Closing Cash Consideration such Warrantholder is entitled to receive pursuant to Section 1.3(d)(i) (on a warrant-by-warrant basis and in the aggregate), gross and net of such Warrantholder’s Loan Repayment Amount, if any, exercise price, and whether Taxes are required to be withheld; (I) such Warrantholder’s aggregate Per Share Indemnity Escrow Release Consideration and the Per Share Expense Fund Release Amount, in each case, assuming full release of the Indemnity Escrow Fund and Expense Fund, respectively, and Per Share Adjustment Consideration assuming a Final Net Working Capital Surplus of one million ($1,000,000); (J) whether such Warrantholder executed and delivered a Joinder Agreement and such Warrantholder’s Pro Rata Portion; and (K) whether such Warrantholder is a Withholding Securityholder with respect to such Company Warrant; (x) with respect to each recipient of a Promised Option: (A) the name, address of record, e-mail address (if available), jurisdiction of Tax residence of such recipient of a Promised Option; (B) the number of shares of Company Common Stock subject of such Promised Option and that portion of the Promised Option Value attributable to such shares; (C) the number of shares of Acquiror Common Stock subject to such recipient’s Acquiror RSU Award to be granted (assuming such recipient is a Continuing Employee); and (D) the vesting schedule (including number of shares vesting per vesting period) for such Acquiror RSU Award; (xi) wire or other payment instructions for all amounts to be paid by Acquiror in accordance with this Agreement, including any Third Party Expenses and Closing Indebtedness that Acquiror is to paydeliver, or cause to be paidprepared and delivered, following to Parent, a draft of the Closing Payment Spreadsheet (based on the calculation of the Estimated Merger Consideration set forth in the Pre-Closing Statement). Parent shall be entitled to review, and the Company shall -50- **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** consider in good faith, and update with respect to, the reasonable comments of Parent on, the draft Payment Spreadsheet. The Payment Spreadsheet delivered pursuant to Section 4.4(a) (Contents ofPayment Spreadsheet) shall be based upon the draftPayment Spreadsheet delivered pursuant to this Section 4.4(b) after the Company’s behalf; and (xii) such other information reasonably requested by Acquiror 's good faith consideration of, and updates with respect to, the reasonable comments of Parent thereon. Parent, the Surviving Corporation and the Paying Agent and their respective Affiliates shall have no liability to any current, former or alleged Securityholder for relying on or paying the Merger Consideration in connection accordance with facilitating the payments contemplated by this AgreementPayment Spreadsheet.

Appears in 1 contract

Samples: Purchase Agreement

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