Spreadsheet. The Company will cause to be prepared and delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable to Parent and the Payment Agent, dated and setting forth as of the Closing the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”).
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Emc Corp), Merger Agreement (Vmware, Inc.)
Spreadsheet. The Company will cause to be prepared and delivered shall deliver to Parent, at least not less than five (5) Business Days before prior to the ClosingClosing Date, a spreadsheet, draft spreadsheet in a form reasonably acceptable to Parent, which shall include the information set forth below and shall deliver to Parent and the Payment Agent, dated and setting forth as of not less than one (1) Business Day prior to the Closing a final spreadsheet (the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs “Spreadsheet”) that will be certified as complete and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect correct as of the Closing Date for by the Chief Executive Officer of the Company (such certification, the “Spreadsheet Certificate”):
(a) with respect to each Company Option; Stockholder, (di) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; address and, if available to the Company, social security number (hor IRD number or tax identification number, as applicable), (ii) such Person’s tax residency, (iii) the number of shares Company Shares held by such Person, (iv) the respective date(s) of acquisition of such Company Shares, (v) such Company Stockholder’s Pro Rata Portion expressed as a fraction, (vi) such Company Stockholder’s Pro Rata Portion of the Total Closing Consideration, (vii) such Company Stockholder’s portion of the Closing Cash Consideration, (viii) the number of Parent Common Stock underlying each holder’s Substitute Options Closing Shares and Replacement RSUsEscrow Shares issuable to such Company Stockholder, if any, (iix) the amount such Company Stockholder’s Pro Rata Portion of the applicable required Tax withholdings Escrow Amount expressed as of the date the Spreadsheet is provided attributable to each holder of a Dollar amount, (x) such Company UnitsStockholder’s Required Withholding Amount, if any, (xi) such Company OptionsStockholder’s Closing Wire Amount, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (kxii) such other information relevant thereto or which that Parent may reasonably request request; and
(b) with respect to each holder of Indebtedness of the Company, (i) such Person’s address and, if available to the Company, social security number (or tax identification number, if applicable), (ii) the principal amount of the Indebtedness owed to such Person, (iii) the initial issue date or incurrence of such Indebtedness, (iv) the interest rate applicable to such Indebtedness, (v) the interest accrued thereunder and (vi) the aggregate amount due and payable in connection with such Indebtedness at least five Business Days before the Closing Date (the “Spreadsheet”)Closing, including any change of control premiums applicable thereto, and a description of any such premiums.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Cornerstone OnDemand Inc)
Spreadsheet. The Company will cause to be prepared shall prepare and delivered deliver to Parent, at least five Business Days before or prior to the Closing, a spreadsheet, spreadsheet (the “Spreadsheet”) in a the form provided by the Company to Parent prior to the Closing and reasonably acceptable to Parent and the Payment AgentParent, which Spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating information, as of the Closing Date and immediately prior to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted UnitsEffective Time: (a) the names and addresses (including email addresses), to the extent practicable, of all such holderssecurityholders of the Company, including the Stockholders of the Company and holders of Company Options, and their respective addresses and where available, taxpayer identification numbers; (b) the number and type kind of security held, including the shares of capital stock of the Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units Options held by, such PersonsPersons and, in the case of outstanding shares, the respective certificate numbers; (c) the number of shares of capital stock of the Company subject to and the exercise price per unit share in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as vesting status and schedule with respect to the Company Option and capital stock of the Closing Date for any securities that are convertible into Company Units and terms of the type Company’s rights to repurchase such unvested capital stock of the Company Units into which (including the securities are convertiblerepurchase price payable per share under each share of unvested capital stock of the Company); (e) whether such Company Option was granted as an incentive stock option or non-statutory stock option under the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6Code; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage calculation of the Applicable Fraction and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed)Designated Parent Stock Price; (g) whether a Person is an Installment Party the amount of cash to be paid or which has been paid to each Designated Stockholder and if so, such Person’s Unit Installment AmountDebt Holder; (h) the number of shares of Parent Common Stock underlying to be issued or which has been issued to each holder’s Substitute Options Designated Stockholder and Replacement RSUs, Debt Holder; (i) the amount Indemnification Pro Rata Portion of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted UnitsDesignated Stockholder; (j) the aggregate total amount of all outgoing wires Taxes to be withheld from the merger consideration that each Company Stockholder immediately prior to the Payment AgentEffective Time is entitled to receive pursuant to Section 1.5(a); (k) the number of shares of Parent Common Stock issuable to each Stockholder of the Company; and (l) the amount of cash in lieu of any fractional share of Parent Common Stock payable to each Stockholder of the Company. The Company shall prepare and deliver to Parent, a draft of the Spreadsheet not later than three business days prior to the Closing Date. Without limiting the generality or effect of the foregoing or the provisions of this Section 6.9, the Company and any of its Subsidiaries in respect of payments shall provide to be made to holders of Company Units and In-The-Money Vested OptionsParent, as applicablepromptly after Parent’s request, the Escrow Agent and any third-party in respect copies of the payment of Third Party Expenses; and (k) documents or instruments evidencing the amounts set forth on any such other information relevant thereto draft or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)final certificate.
Appears in 2 contracts
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquirer, at least five Business Days before the Closingin accordance with Section 6.11, a spreadsheetspreadsheet (the “Spreadsheet”) in the form provided by Acquirer prior to the Closing and reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein and other data and information reasonably requested by Acquirer), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Unitsimmediately prior to the Closing: (ai) the names and addresses (including email addresses), to the extent practicable, of all such holders; the Company Securityholders and their respective addresses, e-mail addresses and, where available, taxpayer identification numbers, (bii) the number and type of shares of Company Units or other securities Common Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units Warrants held by, such Persons; Company Securityholders and, in the case of outstanding shares, the respective certificate numbers, (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hiii) the number of shares of Parent Company Common Stock underlying subject to and the exercise price per share in effect for each holder’s Substitute Options and Replacement RSUsCompany Warrant, (iiv) the vesting status and schedule with respect to Company Warrants and Unvested Company Shares and terms of the Company’s rights to repurchase such Unvested Company Shares (including the per share repurchase price payable with respect thereto), (v) the calculation of the Acquirer Stock Price, Milestone 1 Per Share Stock Consideration, Milestone 2 Per Share Stock Consideration, Milestone 1 Stock Consideration, Milestone 2 Stock Consideration, Cash Consideration, Closing Common Per Share Stock Consideration, Closing Stock Consideration, Common Per Share Cash Consideration, Fully-Diluted Company Common Stock and Restricted Stock, (vi) the calculation of aggregate cash amounts and shares of Acquirer Common Stock payable and issuable, respectively, to each such Company Shareholder pursuant to Section 1.3(a) and Section 1.3(b) and the total amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments Taxes to be made to holders of Company Units and In-The-Money Vested Optionswithheld therefrom (including, as if applicable, the number of shares of Acquirer Common Stock to be withheld), (vii) the calculation of each Founder’s Escrow Agent and any third-party in respect Pro Rata Share of the payment Cash Escrow Amount, (viii) the calculation of Third Party Expenses; each Company Shareholder’s Consideration Pro Rata Share of the Restricted Stock (i.e., Lock-Up Shares) and (kix) such a funds flow memorandum setting forth applicable wire transfer instructions and other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)requested by Acquirer.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Marin Software Inc)
Spreadsheet. The Company will cause to be Pathlore has prepared and delivered to ParentSumTotal a spreadsheet set forth on Section 5.12 of the Pathlore Schedules (the “Spreadsheet”), which sets forth, and at least five Business Days before the ClosingClosing Date shall be updated and completed and certified by the Chief Executive Officer of Pathlore as true, a spreadsheetcomplete and correct as of the Closing Date, in a form reasonably acceptable to Parent and dated as of the Payment Agent, dated Closing Date and setting shall set forth as of the Closing the following information relating Date and immediately prior to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted UnitsEffective Time: (a) the names and addresses (including email addresses), to the extent practicable, of all such holdersthe Pathlore Stockholders, holders of Pathlore Options and Pathlore Warrants and their respective addresses and where available, taxpayer identification numbers; (b) the number and type kind of Company Units or other securities shares of Pathlore Capital Stock held by, or subject to the Company OptionsPathlore Options or Pathlore Warrants held by such Persons and, Company RSUsin the case of outstanding shares, Retention RSUs the respective certificate numbers, and in the case of outstanding options or Company Restricted Units held bywarrants, such Personsthe respective option or warrant numbers; (c) the exercise price per unit share in effect as of the Closing Date for each Company OptionPathlore Option or Pathlore Warrant; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units vesting status and the type of Company Units into which the securities are convertibleschedule with respect to Pathlore Options and Pathlore Warrants; (e) the cash amount payable to such holder Disclosed Excess Expense Amount, the Merger Cash Amount, each Pathlore Stockholder’s Proportionate Interest in respect of the cancellation of such holder’s Company Units Expense Reimbursement Amount, the Option Exchange Ratio, the Per Share Pathlore Preferred Stock Preference, the Aggregate Common Consideration, the Aggregate Preferred Consideration, the SumTotal Share Value, the Aggregate Pathlore Common Stock Amount, the Aggregate Pathlore Common Cash Amount, the Aggregate Pathlore Preferred Stock Amount, the Aggregate Pathlore Preferred Cash Amount, the Total Outstanding Participating Shares, the Total Outstanding Pathlore Common Stock and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6the Total Outstanding Pathlore Preferred Stock; (f) the Unit General Escrow Contributionamount of Merger Cash payable to each Pathlore Stockholder in exchange for the Pathlore Capital Stock held by such Persons (and in percentage and dollar terms, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage the amount of cash required to be deducted and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentagewithheld from such Persons for taxes, and if such deduction and withholding applies to particular cash payments or installments, the amount required for each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listedsuch payment or installment); (g) whether a Person is an Installment Party and if so, the amount of Merger Stock payable to each Pathlore Stockholder in exchange for the Pathlore Capital Stock held by such Person’s Unit Installment AmountPersons; (h) the number of shares of Parent SumTotal Common Stock underlying subject to and exercise price of each holder’s Substitute SumTotal Option issuable to each holder of Pathlore Options (and Replacement RSUsin percentage and dollar terms, the amount of cash or options required to be deducted and withheld from such Persons for taxes, and if such deduction and withholding applies to particular vesting installments, the amount required for each such installment); and (i) the amount Proportionate Interest of the applicable required Tax withholdings each Pathlore Stockholder as of the date the Spreadsheet is provided attributable to each holder Effective Time in terms of Company Units, Company Options, Company RSUs, Retention RSUs both dollars and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)SumTotal Common Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sumtotal Systems Inc), Merger Agreement (Sumtotal Systems Inc)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared Buyer and delivered to Parentthe Sellers’ Representative, at least five Business Days before or prior to the Closing, a spreadsheet, spreadsheet (the “Spreadsheet”) in a the form reasonably acceptable to Parent and the Payment AgentBuyer, which Spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs the Closing Date and Company Restricted Unitsimmediately prior to the Closing: (a) the names of all the Company Stockholders, Company Optionholders and their respective email addresses , Israeli identification number (and where available, taxpayer identification numbers) and bank account details (including email addressesthe respective bank name and number, branch name and address, swift number and account number), to the extent practicable, of all such holders; (b) whether such Person is or was an employee of the Company or the US Subsidiary; (c) the number and type kind of shares of Company Units or other securities Capital Stock held by, or subject to the Company OptionsOptions held by such Persons and, Company RSUsin the case of outstanding certificated shares, Retention RSUs or Company Restricted Units held by, such Personsthe respective certificate numbers; (cd) the number of shares of Company Capital Stock subject to and the exercise price per unit share, as converted to US dollars ($) per the NIS Exchange Rate, in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable vesting status and schedule with respect to such holder in respect the Company Options and Company Capital Stock and terms of the cancellation Company’s rights to repurchase such unvested Company Capital Stock (including the repurchase price payable per share under each share of such holder’s unvested Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6Capital Stock); (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage Tax status of each Indemnifying Securityholder share of Company Capital Stock and Indemnifying FounderCompany Option under Section 422 of the Code or, if applicable, under the Israeli Tax Code (including status as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentagea Company 102 Share, Company 102 Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listedor Company 3(i) Option); (g) whether a Person is an Installment Party the Aggregate Consideration Value, the Company Net Working Capital, the Transaction Expenses that are unpaid as of the Closing, the Buyer Stock Price Per Share, the Fully-Diluted Company Capital Stock Amount, the Aggregate Seller Company Capital Stock Amount, the Founder Seller Company Capital Stock Amount, the Non-Founder Seller Company Capital Stock Amount, the Founder Seller Pro-Rata Share and if so, such Person’s Unit Installment Amountthe Non-Founder Seller Pro-Rata Share; (h) the number calculation of shares of Parent Common the Aggregate Net Consideration Amount, the Equity Exchange Ratio, the NIS Exchange Rate, the Aggregate Founder Seller Cash Amount, the Aggregate Founder Seller Stock underlying Amount, the Aggregate Non-Founder Seller Amount, the Founder Seller Closing Cash Amount, the Founder Seller Closing Stock Amount, the Founder Seller Closing Cash Amount Per Share, the Founder Seller Closing Stock Amount Per Share, for each holder’s Substitute Options Founder Seller, the Individual Founder Seller Closing Cash Amount and Replacement RSUsthe Individual Founder Seller Closing Stock Amount, for each Non-Founder Seller, the Individual Non-Founder Seller Closing Amount, the Non-Founder Seller Closing Amount and the Non-Founder Seller Closing Amount Per Share; (i) without derogating from Buyer’s rights under Section 1.10(a) or otherwise binding Buyer to a specific withholding amount or rate, the tax withholding rate and the total amount of Taxes (including for income, payroll, social security and other Taxes) to be deducted and withheld from the applicable required Tax withholdings as of Aggregate Stock Consideration Amount that each Company Securityholder immediately prior to the date the Spreadsheet Closing is provided attributable entitled to each holder of Company Units, Company Options, Company RSUs, Retention RSUs receive pursuant to Sections 1.2(b) and Company Restricted Units(c); (j) the aggregate amount calculation of all outgoing wires to the Payment AgentIndemnity Holdback Amount, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicableFounder Seller Indemnity Holdback Amount, the Escrow Agent and any thirdNon-party in respect Founder Seller Indemnity Holdback Amount, the Indemnity Pro Rata Share of each Indemnifying Person; (k) the calculation of the payment of Third Party ExpensesPro Rata Share; and (kl) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (calculation of the “Spreadsheet”)aggregate number of shares of Buyer Common Stock subject to the Founder Stock Restriction Agreement for each Seller Founder.
Appears in 2 contracts
Samples: Share Exchange Agreement (Imperva Inc), Share Exchange Agreement (Imperva Inc)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquirer, at least five Business Days before the Closingin accordance with Section 5.14, a spreadsheetspreadsheet (the “Spreadsheet”) in form and substance reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Unitsimmediately prior to the Closing: (ai) the names and addresses (including email addresses), to the extent practicable, of all such holders; the Converting Holders and their respective addresses and, where available, taxpayer identification numbers, (bii) the number and type of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs Options or Company Restricted Units Warrants held by, such Persons; Converting Holders and, in the case of outstanding shares, where applicable, the respective certificate numbers, (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hiii) the number of shares of Parent Company Capital Stock subject to and the exercise price per share in effect for each Company Option and Company Warrant, (iv) the vesting status and schedule with respect to Company Options and Company Warrants and Unvested Company Shares and terms of the Company’s rights to repurchase such Unvested Company Shares (including the per share repurchase price payable with respect thereto), (v) for each Company Option that was early exercised, the Tax status of each such Company Option under Section 422 of the Code, the date of such exercise and the applicable exercise price, (vi) the calculation of Fully-Diluted Company Capital Stock, (vii) the calculation of aggregate cash amounts and shares of Acquirer Common Stock underlying payable and issuable, respectively, to each holder’s Substitute Options such Converting Holder pursuant to Section 1.3(a) and Replacement RSUsthe total amount of Taxes to be withheld therefrom (including, if applicable, the number of shares of Acquirer Common Stock to be withheld), (iviii) the calculation of each Converting Holder’s Escrow Pro Rata Share of the Escrow Amount and Extended Escrow Amount, (ix) the MRP Participant Cash Amount and MRP Participant Stock Amount for each MRP Participant, (x) the calculation of each MRP Participant’s Escrow Pro Rata Share of the Escrow Amount and Extended Escrow Amount, (xi) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, Accruing Dividends on the Company Preferred Stock between the Agreement Date and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Optionsthe Closing Date, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (kxii) such a funds flow memorandum setting forth applicable wire transfer instructions and other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)requested by Acquirer.
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared Acquirer the final version of a spreadsheet (the “Spreadsheet”) in form and delivered substance reasonably satisfactory to Parent, at least five Acquirer and the Paying Agent no later than three (3) Business Days before prior to the ClosingClosing Date, a spreadsheet, in a form reasonably acceptable to Parent and the Payment Agent, which Spreadsheet shall (i) be dated and setting forth as of the Closing Date, (ii) set forth all of the following information relating (in addition to the holders other required data and information specified therein) as of immediately prior to the Effective Time, and (iii) be certified as complete, true and correct as of the Closing Date by the Chief Executive Officer of the Company Units, other securities convertible into (the “Spreadsheet Certificate”); provided that the Company Units, Company Options, Company RSUs, Retention RSUs shall deliver to Acquirer a draft version of the Spreadsheet at least five (5) Business Days prior to the Closing Date and Company Restricted Units: correct any errors identified by Acquirer to Acquirer’s reasonable satisfaction prior to delivering the final version of the same in accordance with this Section 5.18:
(a) the names and addresses (including email addresses), to the extent practicable, of all of the Company Securityholders (other than a Company Securityholder that holds only Retention RSUs) and, as shown on the books and records of the Company, their respective addresses, e-mail addresses, country of employment and whether such holders; persons were employees or independent contractors;
(b) the number and type of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUsWarrants, Retention Company RSUs or Company Restricted Units other forms(s) of equity compensation award held by, such Persons; Company Securityholders and, in the case of outstanding shares, the respective certificate numbers;
(c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Company Capital Stock subject to and, to the extent applicable, the exercise price per share in effect for, each Company Option, Company RSU and Company Warrant;
(d) the grant date and vesting status and schedule with respect to Company Options, Company Warrants and Company RSUs;
(e) for each Company Option that was early exercised, the Tax status of each such Company Option under Section 422 of the Code, the date of such exercise and the applicable exercise price;
(f) the calculation of Fully-Diluted Common Stock underlying (including specification of the securities that will be excluded pursuant to the proviso to the definition of Per Share Consideration);
(g) the calculation of Total Consideration, Aggregate Exercise Price, Per Share Consideration, Closing Per Share Consideration, Total Converting Holders Consideration and the Closing Payment;
(h) the calculation of aggregate cash amounts from the Closing Payment payable to each holder’s Substitute Options and Replacement RSUs, Converting Holder pursuant to Section 1.3(a);
(i) the amount calculation of the applicable required Tax withholdings as Unvested Company Options to be assumed by Acquirer pursuant to Section 1.3(a)(ii), including corresponding calculations of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs Exchange Ratio and Company Restricted UnitsAcquirer Stock Price; and
(j) the calculation of each Converting Holder’s Pro Rata Share (expressed as a percentage) and the aggregate amount of all outgoing wires each Converting Holder’s contribution to the Payment AgentEscrow Fund and the Expense Fund, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)respectively.
Appears in 1 contract
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquirer, at least five Business Days before the Closingin accordance with Section 5.12, a spreadsheetspreadsheet (the “Spreadsheet”) in form and substance reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: immediately prior to the Closing:
(a) the names of all of Company Securityholders and, where available, their respective addresses, e-mail addresses, taxpayer identification numbers, and addresses (including email addresses)whether, to the extent practicableCompany’s knowledge, of all such holders; Person is an Accredited Securityholder or Unaccredited Securityholder;
(b) the number and type of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units Options held by, such Persons; Company Securityholders and, in the case of outstanding shares, the respective certificate or book-entry numbers;
(c) an indication of whether any shares of Company Capital Stock were acquired upon exercise of a Company Option (and, if so, whether such Company Option was an “incentive stock option” within the exercise price per unit in effect as meaning of Section 422 of the Closing Date for each Code and the purchase and sale of Company Option; Capital Stock pursuant to this Agreement results in a “disqualifying disposition” of such shares described in Section 421(b) of the Code);
(d) the conversion price per unit in effect as an indication of the Closing Date for whether any securities that are convertible into Company Units and the type share of Company Units into which the securities are convertible; (e) the cash amount payable Capital Stock is or has been subject to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contributionvesting provisions and, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, whether a valid election was made under Section 83(b) of the Code with respect to any such Person’s Unit Installment Amount; Company Capital Stock;
(he) the number of shares of Parent Company Capital Stock subject to and the exercise price per share in effect for each Company Option;
(f) the number of shares of Company Capital Stock subject to In-the-Money Company Options, and whether any such In-the-Money Company Options are Employee Options or Non-Employee Options;
(g) the calculation of Fully Diluted Company Capital Stock, the Per Share Closing Consideration, the Per Share Closing Total Value, the Per Share Cash Percentage, the Per Share Stock Percentage, for each Company Option, the Option Consideration for such Company Option, the Total Liquidation Preference, the Aggregate Exercise Amount;
(h) the calculation of the aggregate amount of cash and Acquirer Common Stock underlying payable or issuable to each holdersuch Company Securityholder pursuant to Section 1.3(a), and the total amount of Taxes to be withheld from such payment;
(i) each Company Stockholder’s Substitute Options Pro Rata Share (expressed as a percentage);
(j) the following information with respect to each of the shares of Company Capital Stock set forth in clause (b) of this Section 5.8 above that would be deemed a “covered security” under Treasury Regulation Section 1.6045-1(a)(15), for federal tax purposes and Replacement RSUsto the knowledge of the Company, (i) the date such shares of Company Capital Stock were originally purchased (or the holding period otherwise started) and (ii) the Company Stockholder’s adjusted tax basis in such shares of Company Capital Stock;
(k) if a Company Securityholder is a borrower under a promissory note with the Company or is otherwise indebted to the Company for any monetary amount, the amount of the applicable required Tax withholdings owed by such Company Securityholder (including all accrued interest thereon) as of the date Effective Time which shall be deducted from the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires cash payable in connection with the Closing to the Payment Agent, the such Company Securityholder; and
(l) a funds flow memorandum setting forth applicable wire transfer instructions and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)requested by Acquirer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Castle Biosciences Inc)
Spreadsheet. The Company will cause to be prepared and delivered shall deliver to Parent, at least five not less than three (3) Business Days before prior to the ClosingClosing Date, a spreadsheet, spreadsheet (the “Spreadsheet”) in a form reasonably acceptable to Parent Parent, which spreadsheet shall be certified as complete and correct by the Payment AgentChief Executive Officer and Chief Financial Officer of the Company (such certification, dated and setting forth the “Spreadsheet Certificate”) as of the Closing and which shall include, among other things, as of the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: Closing:
(a) the names and addresses (including email addresses), with respect to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; Stockholder, (di) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; address and email address, (hii) the aggregate number of shares of Parent Common Company Series A Preferred Stock, Company Series B Preferred Stock, Company Series C Preferred Stock, and Company Series D Preferred Stock underlying each holder’s Substitute Options and Replacement RSUsheld by such Company Stockholder, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (jiii) the aggregate amount Series A Per Share Amount, Series B Per Share Amount, Series C Per Share Amount, and Series D Per Share Amount receivable by such Company Stockholder pursuant to Section 1.7(b) hereof, (iv) such Company Stockholder’s Pro Rata Escrow Portion of all outgoing wires to the Payment AgentEscrow Amount expressed as a percentage and such Company Stockholder’s Pro Rata Escrow Portion of the Escrow Amount expressed as a Dollar amount, (v) such Company Stockholder’s Pro Rata Executive Escrow Portion of the Executive Escrow Amount expressed as a percentage and such Company Stockholder’s Pro Rata Executive Escrow Portion of the Executive Escrow Amount expressed as a Dollar amount, (vi) such Company Stockholder’s Pro Rata Indemnity Portion, and any (vii) the portion of its Subsidiaries in respect of payments the Closing Cash Consideration to be made paid to holders of such Company Units and In-The-Money Vested OptionsStockholder at the Closing pursuant to Section 1.7(b) hereof, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (kviii) such other information relevant thereto that Parent or which Parent the Paying Agent may reasonably request request;
(b) with respect to each Executive Transaction Bonus Recipient, (i) such Person’s address and email address, (ii) the amount of such Person’s Executive Transaction Bonus, if any, (iii) such Person’s Pro Rata Escrow Portion of the Escrow Amount expressed as a percentage and such Person’s Pro Rata Escrow Portion of the Escrow Amount expressed as a Dollar amount, and (iv) such other information relevant thereto that Parent or the Paying Agent may reasonably request;
(c) with respect to each holder of Indebtedness of the Company, (i) such Person’s address and email address, (ii) the principal amount of the Indebtedness owed to such Person, (iii) the initial issue date or incurrence of such Indebtedness, (iv) the interest rate applicable to such Indebtedness, (v) the interest accrued thereunder, (vi) the aggregate amount due and payable in connection with such Indebtedness at least five Business Days before the Closing Date Closing, including any change of control premiums applicable thereto, and a description of any such premiums, and (vii) such other information relevant thereto that Parent or the Paying Agent may reasonably request; and
(d) as applicable, the Spreadsheet shall also include, with respect to each holder of shares of Company Capital Stock issued on or after January 1, 2011, or any other security that would be deemed a “Spreadsheet”covered security” under Treasury Regulation § 1.6045-1(a)(15), (i) the cost basis of such shares or securities, (ii) the respective date(s) of issuance of such shares or securities, (iii) the respective certificate number(s) representing such shares or securities, (iv) the respective class or series of such shares or securities, and (iv) such other information relevant thereto that Parent or the Paying Agent may reasonably request.
Appears in 1 contract
Spreadsheet. The On the Closing Date, the Company will cause shall deliver to be prepared Parent a spreadsheet (the "Spreadsheet") in form and delivered substance acceptable to the Parent, at least five Business Days before which Spreadsheet shall be certified as complete and correct by the Closing, a spreadsheet, in a form reasonably acceptable to Parent and Chief Executive Officer of the Payment Agent, dated and setting forth Company as of the Closing and which shall separately list, as of the following information relating to the Closing, (i) all holders of Company UnitsCommon Stock and their respective addresses, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Company Common Stock underlying held by each such holder’s Substitute , the number of Common Merger Shares to be issued to each such holder pursuant to Section 2.6(b), the number of Common Merger Shares, if any, deemed Restricted Shares with respect to each such holder, the number of Common Merger Shares, if any, deemed Registrable Shares with respect to each such holder, the portion of the Common Cash Amount to be paid to each such holder pursuant to Section 2.6, the number of Common Merger Shares to be deposited into the Escrow Account on behalf of each such holder and the portion of the Common Cash Amount to be deposited into the Escrow Account on behalf of each such holder pursuant to Section 2.6, and, assuming the Earnout Shares are greater than zero, the number of Earnout Shares potentially issuable to each such holder pursuant to Section 2.6, and (ii) all holders of Company Options and Replacement RSUstheir respective addresses, (i) the amount number of the applicable required Tax withholdings shares of Company Common Stock such Company Options are exercisable for as of immediately prior to the date the Spreadsheet is provided attributable Effective Time with respect to each such holder of Company Units, and the respective exercise price for such Company Options, Company RSUs, Retention RSUs the number of Option Merger Shares issuable upon exercise of the respective Parent Options pursuant to Section 2.6 and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agentrespective exercise price for such Parent Options, the Company and any portion of its Subsidiaries in respect of payments the Common Cash Amount to be made paid to holders of Company Units and In-The-Money Vested Optionseach such holder pursuant to Section 2.6, as applicableand, assuming the Earnout Shares are greater than zero, the Escrow Agent and any third-party in respect number of the payment Earnout Shares potentially issuable upon exercise of Third Party Expenses; and (k) Parent Options held by each such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)holder pursuant to Section 2.6.
Appears in 1 contract
Spreadsheet. The Company will cause to be prepared and shall have delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable to Parent and the Payment AgentExchange Agent a spreadsheet (the “Spreadsheet”) substantially in the form attached hereto as Schedule 6.3(s), dated which spreadsheet shall be, and setting forth shall be certified by the Chief Executive Officer and Chief Financial Officer of the Company as, true, complete and correct as of the Closing and which shall include, among other things, as of the following information relating to Closing, (i) all Stockholders and their respective addresses, the holders number of shares of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses Capital Stock held by such persons (including email addressesthe respective certificate numbers, and in the case of Company Preferred Stock, the conversion price in respect of such Company Preferred Stock), to the extent practicabledate of acquisition of such shares, of all such holders; (b) the number and type of shares of each class or series of Company Units or other securities held byCapital Stock outstanding (determined as if all Company Options then outstanding had been exercised), or subject the calculation (in each case in reasonable detail and calculated to two decimal places) of the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) amount of the exercise price per unit in effect Per Share Series A Liquidation Preference Payment as of the Closing Date for each Company Option; (d) Date, the conversion price per unit in effect Per Share Series B Liquidation Preference Payment as of the Closing Date for any securities that are convertible into Company Units Date, and the type Cash Consideration allocable to one share of each class or series of Company Units Capital Stock (determined, as if all Company Options then outstanding had been exercised), for each Stockholder, the percentage of the Cash Consideration to be received by such Stockholder, for each Stockholder, the dollar amount of Cash Consideration to be received by such Stockholder, and the amount of Escrow Cash to be deposited into which the securities are convertible; (e) the cash amount payable Escrow Fund relating to such holder in respect Stockholder, (ii) all holders of Company Options and their respective addresses, the cancellation number of shares of Company Capital Stock underlying each such Company Option, the grant dates of such holder’s Company Units Options and Inthe vesting arrangement with respect to such Company Options and indicating whether such Company Options are incentive stock options or non-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentagequalified stock options, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hiii) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the amount issuable upon exercise of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments Options to be made to holders of Company Units assumed by Parent and In-The-Money Vested Options, as applicable, the Escrow Agent per share exercise price thereof and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before request. The Company shall have delivered the Spreadsheet on the Closing Date (the “Spreadsheet”)Date.
Appears in 1 contract
Samples: Merger Agreement (Altiris Inc)
Spreadsheet. The Company will cause to be prepared and has delivered to ParentParent a spreadsheet setting forth the following information, at least five Business Days before the Closing, a spreadsheet, in a form and accompanied by documentation reasonably acceptable satisfactory to Parent in support of the calculation of the information set forth therein, which information is true, correct and the Payment Agent, dated complete as of date hereof and setting forth as of the Closing Effective Time (the following information relating to "Spreadsheet"):
(i) calculation of the holders applicable Per Share Consideration for each class or series of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted UnitsCapital Stock; and
(ii) with respect to each Stockholder: (ai) the names name and addresses address of such Stockholder, and, if available, the e-mail address of such holder, (including email addressesii) the number, class and series of shares of Company Capital Stock held by such Stockholder and the respective certificate numbers and date of acquisition of such shares; (iii) the aggregate number of Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares to be paid to such Stockholder, (iv) the aggregate Cash Consideration to be paid to such Stockholder, (v) whether such Stockholder is a current or former employee of the Company, (vi) whether any Taxes are to be withheld in accordance with Section 1.8 from the consideration that such Stockholder is entitled to receive pursuant to Section 1.6(e)(i), to (vii) the extent practicablePro Rata Portion of such Stockholder, of all such holders; and (bviii) the number of Parent Preferred Stock Payment Shares to be deposited with the Escrow Agent as Escrow Shares on behalf of such Stockholder pursuant to this Agreement and type the Escrow Agreement; and
(iii) with respect to each Company Option: (i) the name and address of Company Units the holder thereof, and, if available, the e-mail address of such holder, (ii) the aggregate number of Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares to be paid to such holder, (iii) whether such holder is an employee, consultant, director or other securities held byofficer of the Company, or subject to (iv) the Company Optionsgrant date and expiration date thereof, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (cv) the exercise price per unit share and the number, class and series of shares of Company Capital Stock underlying such Company Option immediately prior to the Closing, (vi) whether any Taxes are to be withheld in effect as of accordance with Section 1.8 from the Closing Date for each Company Option; consideration that such holder is entitled to receive pursuant to Section 1.6(f), (dvii) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation Pro Rata Portion of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hviii) the number of shares of Parent Common Preferred Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments Shares to be made to holders of Company Units and In-The-Money Vested Options, as applicable, deposited with the Escrow Agent as Escrow Shares on behalf of such holder pursuant to this Agreement and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (EnteroMedics Inc)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquiror, at least five Business Days before or prior to the Closing, a spreadsheetspreadsheet (the “Spreadsheet”) in the form provided by Acquiror prior to the Closing, in a form reasonably acceptable to Parent Acquiror and the Payment Exchange Agent, certified by the Chief Executive Officer or President of the Company, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth, as of the following information relating Closing Date and immediately prior to the holders of Company Units, First Effective Time (in addition to the other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs required data and Company Restricted Units: information specified therein): (a) the names and addresses (including email addresses), to the extent practicable, of all such holdersthe Company Stockholders, Company Optionholders and Company Warrantholders and their respective addresses and where available, taxpayer identification numbers; (b) the number and type kind of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, by such Persons, the respective certificate numbers and whether such shares are Dissenting Shares; (c) the exercise price per unit in effect as number and kind of shares of Company Capital Stock subject to the Company Options and/or Company Warrants held by such Persons or exercised by such Persons between the Agreement Date and the Closing Date Date, and in the case of options, whether such options are or were incentive stock options or non-qualified stock options under the Code and for each Company Optionexercised options, the amount of reportable income for Tax purposes and/or amount required to be withheld for Taxes in connection with such exercises; (d) the conversion price per unit in effect as vesting status and schedule with respect to the aforementioned Company Options, Company Warrants and Unvested Company Shares and terms of the Closing Date for any securities that are convertible into Company’s rights to repurchase such Unvested Company Units and Shares (including the type of repurchase price payable per share under each Unvested Company Units into which the securities are convertibleShare); (e) the cash amount payable to such holder in respect calculation of the cancellation of such holder’s Acquiror Closing Stock Price, Company Units Net Working Capital Deficit, Company Net Working Capital Surplus, Fully-Diluted Company Shares, Fully-Diluted Vested Company Shares, Per Share Closing Cash Amount, Per Share Closing Share Amount, Per Share Escrow Share Amount, Total Closing Cash Consideration, Total Closing Share Consideration, Total Escrow Shares, Total Share Consideration, Unvested Company Options Per Share Value and In-the-Money Vested Unvested Company Options or other securities pursuant to Section 1.4 or Section 1.6Aggregate Value; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage number of shares of Acquiror Common Stock (and Unit Litigation Funding Percentage cash in lieu of fractional shares) and amount of cash issuable to each Indemnifying Securityholder Company Stockholder and Indemnifying Founder, as applicable Company Optionholder in exchange for the Company Capital Stock and Vested Company Options held by such Persons (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, including the amount of cash required to be deducted and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listedwithheld from such Persons for Taxes); (g) whether if a Person is an Installment Party Company Stockholder holds Unvested Company Shares, the amount of Unvested Acquiror Shares or Unvested Acquiror Cash payable in respect of such Unvested Company Shares, the vesting schedule and if so, associated vesting amounts for such Person’s Unit Installment AmountUnvested Acquiror Shares or Unvested Acquiror Cash and the repurchase price payable with respect to each share of such Unvested Acquiror Shares or each dollar of such Unvested Acquiror Cash; (h) the number of shares Acquiror RSUs issuable to each Company Optionholder in exchange for the Unvested Company Options held by such Persons and the vesting schedule and associated vesting amounts for such Acquiror RSUs; and (h) the Pro Rata Share of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUsEffective Time Holder, (i) the amount of Escrow Shares to be deposited into the applicable required Tax withholdings as Escrow Fund on behalf of each Effective Time Holder, and the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to any such Escrow Shares that are unvested (and the Payment Agent, the Company vesting schedule and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) associated vesting amounts for such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”unvested shares).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Concur Technologies Inc)
Spreadsheet. The Company will cause to be prepared and delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable to Parent and the Payment Agent, dated and setting forth as of the Closing the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) Attached hereto as Exhibit F is a spreadsheet (the names and addresses “Trial Run Spreadsheet”) setting forth good faith estimates of the following, in each case determined on a pro forma basis as if the Closing occurred on the date of this Agreement: (i) the calculation of Initial Merger Consideration (including email addressescalculations of the individual components thereof), to the extent practicable, of all such holders; (bii) the number and type Additional Consideration, (iii) the calculation of Company Units or other securities Fully Diluted Common Stock, (iv) the methodology for the calculation of the Requisite Securityholders, (v) for each Company Securityholder, such Company Securityholder’s (A) applicable portion of the Initial Merger Consideration (including the allocation of the form of consideration payable), (B) Expense Pro Rata Share, (C) Escrow Pro Rata Share, (D) Excess Indemnity Pro Rata Share, (E) name and address, (F) Company Capital Stock held by, or subject to the Company Options, Options or the Company RSUs, Retention RSUs or Company Restricted Units Warrant held by, such Persons; Persons and, in the case of outstanding shares, the respective certificate numbers, and (cG) the exercise price per unit in effect as vesting status and schedule with respect to Company Options and Company Capital Stock and the Tax status of each such Company Option under Section 422 of the Closing Date for each Company Option; Code, (dvi) whether any payroll Tax withholding applies to the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount Aggregate Merger Consideration payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (ivii) with respect to each Company Lender, the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company UnitsDebt held by such Company Lender, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (kviii) such other calculations and information relevant thereto or which Parent may as specifically contemplated elsewhere in this Agreement to be set forth in the Trial Run Spreadsheet.
(b) Company shall prepare and deliver to Acquiror, not less than one (1) calendar day prior to Closing, a Spreadsheet in form reasonably request at least five Business Days before acceptable to Acquiror and in the Closing Date form of the Trial Run Spreadsheet (the “Spreadsheet”), which Spreadsheet shall be dated as of the Closing Date and shall set forth all of the information required to be included in the Trial Run Spreadsheet (in addition to the other required data and information specified therein), as of immediately prior to the Effective Time. For the avoidance of doubt, the Spreadsheet will include, in addition to the other details and calculations set forth above, (a) a complete and correct list of each Company Lender, (b) the estimated amount of all Company Debt owed to each Company Lender as of immediately prior to the Effective Time, specifying the principal, penalties, interest and premiums necessary to satisfy and discharge all obligations in respect thereof on the Closing Date, (c) the estimated aggregate Company Debt as of immediately prior to the Effective Time (the “Estimated Company Debt”), (d) an itemized list of each Transaction Expense, including the names and addresses of each Person to whom such expense was or is owed, (e) the estimated aggregate Transaction Expenses as of immediately prior to the Effective Time (the “Estimated Transaction Expenses”), (f) the Estimated Working Capital, (g) the Estimated Cash Balance, (h) the Estimated Net Working Capital Shortfall, (i) the Estimated Cash Shortfall, and (j) wire instructions for each recipient of payment of Estimated Transaction Expenses or Estimated Company Debt. Prior to the Closing, Company shall provide Acquiror with a duly and validly executed Form W-9 (or appropriate Form W-8, in the case of non-U.S. Persons) from each recipient of payment of Estimated Transaction Expenses or Estimated Company Debt.
Appears in 1 contract
Samples: Merger Agreement (Rapid7, Inc.)
Spreadsheet. (a) The Company will cause to be prepared shall prepare and delivered deliver to Parent, at least five Business Days before the Closingin accordance with Section 5.13, a spreadsheet, spreadsheet (the “Spreadsheet”) in a the form provided by Parent prior to the -61- Closing and reasonably acceptable to Parent and the Payment AgentParent, which Spreadsheet shall be dated and setting forth as of the Closing the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; and shall set forth all of the following information (din addition to the other required data and information specified therein), as of immediately prior to the Effective Time:
(i) the conversion price per unit in effect names of all the Securityholders and (to the extent known prior to receipt of such Securityholder’s completed Letter of Transmittal) their respective street and email addresses, telephone numbers, Bank Information and status as either an Accredited Holder or Non-Accredited Holder;
(ii) the number, class and series of the Closing Date for any securities that are convertible into Company Units shares of Capital Stock held by such Persons and the type of Company Units into which the securities are convertible; respective certificate numbers (ebroken out on a certificate-by-certificate basis);
(iii) the cash amount payable to such holder in respect grant date or purchase date of the cancellation any shares of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; Capital Stock;
(f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hiv) the number of shares of Parent Common Stock underlying subject to other Company Equity Awards held by each holder’s Substitute Options Securityholder (broken out on a Company Equity Award-by-Company Equity Award basis), the type of award and Replacement RSUsthe vesting status and schedule, including any acceleration, severance or expiration terms, and the name of the Company Equity Plan under which the grant was made;
(v) for each share of Common Stock acquired through the exercise of an Option granted under a Company Equity Plan, (iA) the amount grant date of such Option and (B) whether such Option qualified as an incentive stock option under Section 422 of the applicable required Tax withholdings Code as of the date exercise date;
(vi) the Spreadsheet is provided attributable number of shares of Capital Stock subject to and the exercise price per share in effect for each Warrant (broken out on a Warrant-by-Warrant basis);
(vii) the calculation of the Aggregate Consideration, Aggregate Series A Prime Preferred Consideration, Aggregate In-the-Money Warrant Exercise Price, Aggregate Preferred Exchanged Securities Consideration, Closing Stock Consideration, Closing Company RSU Consideration, Fully Diluted Common Shares, Per Common Share Consideration, Per Series A Prime Preferred Share Consideration, Per Series A Prime Preferred Warrant Consideration, Common Stock Exchange Ratio, Series A Prime Preferred Exchange Ratio and unpaid Estimated Transaction Expenses;
(viii) for each Securityholder, such Securityholder’s Loan Repayment Amount, if any;
(ix) for each Stockholder, the portion of the Closing Stock Consideration payable to such Stockholder pursuant to Section 1.7(a) (both on an aggregate and certificate-by-certificate basis);
(x) for each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow portion of the Closing Company RSU Consideration payable to such Company RSU holder pursuant to Section 0 (both on an aggregate and Company RSU-by-Company RSU basis);
(xi) for each holder of Series A Preferred Prime Warrants, the portion of the Closing Stock Consideration payable to such holder pursuant to Section 1.8(b) (both on an aggregate and Warrant-by-Warrant basis);
(xii) the Pro Rata Share, the Pro Rata Share of the Indemnity Holdback and the Pro Rata Share of the Adjustment Holdback Amount of each Indemnifying Party, in each case expressed as dollar amounts and as percentages;
(xiii) the Pro Rata Share of the Seller Agent Expense Amount of each Indemnifying Party, in each case expressed as dollar amounts and as percentages; and
(xiv) a separate column which indicates whether each holder will be paid by the Paying Agent, the Exchange Agent or through Company payroll.
(b) The Company shall prepare and deliver to Parent and each of the Paying Agent and any third-party the Exchange Agent a spreadsheet (or “flat file” or similar document) containing the information reasonably required by the Paying Agent and the Exchange Agent in respect of order for the payment of Third Party Expenses; Paying Agent and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (Exchange Agent to perform its respective duties as the “Spreadsheet”)Paying Agent and the Exchange Agent for the Transactions.
Appears in 1 contract
Samples: Merger Agreement (8x8 Inc /De/)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to Parent, at least five Business Days before the Closing, Acquirer a spreadsheet, in a accordance with Section 5.13, (the “Spreadsheet”) in form and substance reasonably acceptable satisfactory to Parent and the Payment AgentAcquirer, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Unitsimmediately prior to the Closing: (ai) the names and addresses (including email addresses), to the extent practicable, of all such holders; of the Company Securityholders and their respective addresses, e-mail addresses and, where available, taxpayer identification numbers, (bii) the number and type of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units Warrants held by, such Persons; Company Securityholders and, in the case of outstanding shares, the respective certificate numbers, in each case before and after giving effect to the Conversion Election, (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hiii) the number of shares of Parent Company Capital Stock subject to and the exercise price per share in effect for each Company Option and Company Warrant, (iv) the vesting status and schedule with respect to Company Options, Company RSUs and Company Warrants and Unvested Company Shares and terms of the Company’s rights to repurchase such Unvested Company Shares (including the Unvested Proceeds payable in respect of such Unvested Company Shares and the per share repurchase price payable with respect thereto and the Unvested Warrant Proceeds payable in respect of Unvested Company Warrants), (v) for each Company Option that was early exercised, the Tax status of each such Company Option under Section 422 of the Code, the date of such exercise and the applicable exercise price, (vi) the calculation of the Fully-Diluted Common Stock, Common Per Share Cash Consideration, Cash-Out Per Share Consideration, Aggregate Exercise Price, Common Per Share Stock Consideration, the Cash-Out Amount, the amount to be paid for fractional shares pursuant to Section 1.3(h) and the Acquirer Stock Price, (vii) the calculation of aggregate cash amounts and shares of Acquirer Common Stock underlying payable and issuable, respectively, to each holder’s Substitute Options such Converting Holder and Replacement RSUsCompany Warrantholder pursuant to Sections 1.3(a)(i) and 1.3(a)(iii), respectively, and whether Taxes will be required to be withheld therefrom, (iviii) for each Company Optionholder, the number of shares of Acquirer Common Stock subject to (and the exercise price per share in effect for) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable Company Options, pursuant to Section 1.3(a)(ii), (ix) for each holder of Company Units, Company Options, Company RSUs, Retention RSUs and the number of shares of Acquirer Common Stock subject to the Company Restricted Units; RSU, pursuant to Section 1.3(a)(ii), (jx) the aggregate amount of all outgoing wires vesting schedule with respect to the Payment Agentshares of Acquirer Common Stock issuable to each Named Employee as set forth in the Vesting Agreement executed by such Named Employee, (xi) the Company and any calculation of its Subsidiaries in respect each Converting Holder’s Pro Rata Share of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent Amount (including cash and any third-party stock allocations thereof), (xii) for each Unvested Company Share, confirmation that a proper and timely Section 83(b) election has been filed with the appropriate taxing authorities, (xiii) the full list of designations and the Tax reporting information described in respect of Section 1.3(a)(i)(D) together with the payment of Third Party Expenses; final calculations underlying such information and (kxiv) such a funds flow memorandum setting forth applicable wire transfer instructions and other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)requested by Acquirer.
Appears in 1 contract
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquiror, at least five Business Days before or prior to the Closing, a spreadsheet, Spreadsheet in a customary form reasonably acceptable to Parent and Acquiror, which customary form shall not require the Payment AgentCompany to include more information than the information described below in clauses (a) through (j) (the “Spreadsheet”), which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Unitsimmediately prior to the Effective Time: (a) the names and addresses (including email addresses), to the extent practicable, of all such holdersthe Company Stockholders, Company Warrantholders, Company Optionholders, Company Lenders, and Management Plan Participants and their respective addresses and where available, taxpayer identification numbers; (b) the number and type kind of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Options and Company RSUs, Retention RSUs or Company Restricted Units Warrants held by, such PersonsPersons and, in the case of outstanding shares, the respective certificate numbers; (c) the exercise price per unit in effect as Tax status of each Company Option under Section 422 of the Closing Date for each Company OptionCode; (d) the conversion price per unit in effect as of Fully-Diluted Series C Shares, the Closing Date for any securities that are convertible into Company Units Consideration, and the type of Company Units into which the securities are convertiblePer Share Series C Stock Consideration; (e) with respect to each Company Lender, the cash amount payable to such holder in respect of Debtholder Amount and the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6Debtholder Number; (f) the Unit General Escrow Contributiontotal amount of Taxes to be withheld from the Merger Consideration that each Company Securityholder, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding PercentageCompany Lender, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed)Management Plan Participant immediately prior to the Effective Time is entitled to receive pursuant to Section 1.15; (g) whether a Person is an Installment Party the Pro Rata Share of each Converting Holder and if so, such Person’s Unit Installment the interest in dollar terms of each Converting Holder in the Holdback Amount; (h) the number Pro Rata Share of shares each Converting Holder and the interest in dollar terms of Parent Common Stock underlying each holder’s Substitute Options Converting Holder in the Agent Expense Amount (expressed as a dollar amount and Replacement RSUs, as a percentage); (i) the amount Pro Rata Share of each Management Plan Participant and the applicable required Tax withholdings as interest in dollar terms of each Management Plan Participant in the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs Holdback Amount; and Company Restricted Units; (j) the aggregate Pro Rata Share of each Management Plan Participant and the interest in dollar terms of each Management Plan Participant in the Agent Expense Amount (expressed as a dollar amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”a percentage).
Appears in 1 contract
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquiror, at least five Business Days before or prior to the Closing, a spreadsheetspreadsheet (the "SPREADSHEET"), in a the form reasonably acceptable to Parent Acquiror and the Payment Exchange Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs the Closing Date and Company Restricted Unitsimmediately prior to the Effective Time: (a) the names and addresses (including email addresses), to the extent practicable, of all such holdersthe Company Shareholders, Company Optionholders and Company Warrantholders and most recently provided address shown on the books and records of the Company and where available, taxpayer identification numbers; (b) the number and type kind of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Options and/or Company RSUs, Retention RSUs or Company Restricted Units Warrants held by, such PersonsPersons and, in the case of outstanding shares, the respective certificate numbers; (c) the exercise price per unit share in effect as of the Closing Date for each Company OptionOption and Company Warrant; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into vesting status and schedule with respect to all Company Units Options and the type of Company Units into which the securities are convertibleWarrants; (e) the cash amount payable to such holder in respect Tax status of each Company Option under Section 422 of the cancellation of such holder’s Company Units and In-the-Money Vested Options Code or other securities pursuant to Section 1.4 or Section 1.6comparable laws in applicable jurisdictions; (f) the Unit General calculation of the Acquiror Share Price, Other Escrow ContributionCash, Unit Litigation Securityholders Escrow ContributionCash, Unit Representative Fund ContributionParticipating Common Stock, Company Series B Stock (including, assuming the conversion into Company Common Stock), Company Series C Stock (including, assuming the conversion into Company Common Stock), Option General Escrow ContributionExchange Ratio, Option Representative Fund ContributionCommon Cash Amount Per Share, Aggregate Escrow Funding Percentage Series A Liquidation Preference Per Share, Series B Liquidation Preference Per Share, Series C Liquidation Preference Per Share, Total Merger Consideration, Total Common Consideration, Total Series A Liquidation Preference, Total Series B Liquidation Preference and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed)Total Series C Liquidation Preference; (g) whether a Person is an Installment Party the number of Acquiror Shares subject to and if soexercise price of each Acquiror Option issuable to each Company Optionholder holding Assumed Options (and amount of cash or options required to be deducted and withheld from such Persons for income, such Person’s Unit Installment Amountpayroll and other taxes); (h) a schedule that lists each Cashed Out Option, including the number exercise price of shares each such option and the amount of Parent Common Stock underlying cash to be paid to the holder of each holder’s Substitute Options Cashed Out Option at the Closing (and Replacement RSUsamount of cash or options required to be deducted and withheld from such holder for income, payroll and other taxes); (i) a schedule that lists each Cash Out Warrant, including the exercise price of each such warrant and the amount of cash to be paid to the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs each Cash Out Warrant at the Closing (and Company Restricted Unitsamount of cash or warrants required to be deducted and withheld from such holder for taxes); (j) a list of the aggregate amount names of all outgoing wires to the Payment AgentOther Escrow Participants, the Company Pro Rata Share of each such Other Escrow Participant and any the interest in dollar terms of its Subsidiaries each Other Escrow Participant Holder in respect the Other Escrow Cash; (k) the Pro Rata Share of payments to be made to holders each Effective Time Holder and the interest in dollar terms of Company Units each Effective Time Holder in the Securityholder Escrow Cash and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party ExpensesExpense Fund; and (kl) such other information relevant thereto or which Parent may reasonably request at least five Business Days before calculations of the Closing Date (the “Spreadsheet”)Adjusted Aggregate Other Escrow Participants Percentage, Adjusted Transaction Expenses, Other Escrow Participants Pro Rata Percentage, Other Escrow Participants Percentage, Securityholders Pro Rata Percentage and Aggregate Securityholder Percentage.
Appears in 1 contract
Samples: Merger Agreement (Amdocs LTD)
Spreadsheet. The Company will cause to be prepared and has delivered to ParentParent a spreadsheet setting forth the following information, at least five Business Days before the Closing, a spreadsheet, in a form and accompanied by documentation reasonably acceptable satisfactory to Parent in support of the calculation of the information set forth therein, which information the Company represents and the Payment Agentwarrants is true, dated correct and setting forth complete as of the Closing the following information relating date hereof and as of immediately prior to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date Effective Time (the “Spreadsheet”)):
(i) calculation of the applicable Per Share Consideration for each class or series of Company Capital Stock;
(ii) with respect to each Stockholder: (i) the name and address of such Stockholder, and, if available, the e-mail address of such holder; (ii) the number, class and series of shares of Company Capital Stock held by such Stockholder and the respective certificate numbers and date of acquisition of such shares; (iii) the aggregate number of Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares to be paid to such Stockholder; (iv) whether such Stockholder is a current or former employee, consultant, director or officer of the Company; (v) the Pro Rata Portion of such Stockholder; and (vi) the number of Parent Preferred Stock Payment Shares to be deposited with the Escrow Agent as Escrow Shares on behalf of such Stockholder pursuant to this Agreement and the Escrow Agreement;
(iii) with respect to each Company Convertible Note: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder; (ii) the aggregate number of Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares to be paid to such holder; (iii) whether such holder is a current or former employee, consultant, director or officer of the Company; (iv) the issuance date and expiration date thereof; (v) the principal amount thereof and accrued interest thereon and the number, class and series of shares of Company Capital Stock underlying such Company Convertible Note immediately prior to the Closing; (vi) the Pro Rata Portion of such holder; and (vii) the number of Parent Preferred Stock Payment Shares to be deposited with the Escrow Agent as Escrow Shares on behalf of such holder pursuant to this Agreement and the Escrow Agreement; and
(iv) with respect to each Carveout Participant: (i) the name and address of such Carveout Participant, and, if available, the e-mail address of such Person; (ii) the aggregate number of Parent Common Stock Payment Shares to be paid to such Carveout Participant; and (iii) whether such Stockholder is a current or former employee, consultant, director or officer of the Company.
Appears in 1 contract
Samples: Merger Agreement (EnteroMedics Inc)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquirer, at least five Business Days before the Closingin accordance with Section 5.12, a spreadsheetspreadsheet (the “Spreadsheet”) in form and substance reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; and shall set forth all of the following information (d) in addition to the conversion price per unit in effect other required data and information specified therein), as of immediately prior to the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, Closing: (i) the amount names of all of the applicable required Tax withholdings as Converting Holders and their respective addresses, e-mail addresses and, where available, taxpayer identification numbers, (ii) the number and class of Company Units held by such Converting Holders, (iii) the vesting status and schedule with respect to Unvested Company Units and terms of the date Company’s rights to repurchase such Unvested Company Units (including the Spreadsheet is provided attributable to each holder per unit repurchase price payable with respect thereto), (iv) the calculation of Outstanding Company Units, Company OptionsClosing Per Unit Aggregate Value, Company RSUsClosing Per Unit Cash Consideration, Retention RSUs Closing Cash Consideration, Closing Cash Consideration Percentage, Aggregate Threshold Value, Closing Per Unit Share Consideration, Closing Share Consideration, Closing Share Consideration Percentage, Parent Share Price, Pro Rata Share and Company Restricted Units; Accredited Pro Rata Share, (jv) for each Class B Unit holder, the calculation of Class B Per Unit Aggregate Consideration, Class B Per Unit Cash Consideration and Class B Per Unit Share Consideration, (vi) the calculation of aggregate cash amounts and number of Parent Ordinary Shares payable and issuable, respectively, to each such Converting Holder pursuant to Section 1.3(a)(i) and Section 1.3(a)(ii) and the total estimated amount of all outgoing wires Taxes to be withheld therefrom, (vii) for each Non-Accredited Converting Holder, the calculation of Ineligible Parent Ordinary Shares and the portion of the Non-Accredited Additional Cash Payment payable to such Non-Accredited Converting Holder, (viii) for each Accredited Converting Holder, the calculation of such Accredited Converting Holder’s Accredited Pro Rata Share of the Non-Accredited Additional Cash Payment and the Additional Parent Ordinary Shares, (ix) the vesting schedule with respect to the Payment Agent, the Company and any of its Subsidiaries in respect of payments Parent Ordinary Shares issuable to be made each Key Employee pursuant to holders of Company Units and In-The-Money Vested OptionsSection 1.3(a), as applicableset forth in the Share Restriction Agreement executed by such Key Employee, (x) the Escrow Agent and any third-party in respect calculation of each Converting Holder’s Pro Rata Share of the payment of Third Party Expenses; Cash Escrow Amount and (kxi) such a funds flow memorandum setting forth applicable wire transfer instructions and other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)requested by Acquirer.
Appears in 1 contract
Samples: Merger Agreement (Farfetch LTD)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquirer, at least five Business Days before the Closingin accordance with Section 5.14, a spreadsheetspreadsheet (the “Spreadsheet”) in form and substance reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Unitsimmediately prior to the Closing: (ai) the names and addresses (including email addresses), to the extent practicable, of all such holders; of the Converting Holders and their respective addresses and e-mail addresses, (bii) the number and type of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs Options or Company Restricted Units Notes held by, such Persons; Converting Holders and, in the case of outstanding shares, the respective certificate numbers, (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (hiii) the number of shares of Parent Common Company Capital Stock underlying subject to and the exercise price per share in effect for each holder’s Substitute Options Company Option and Replacement RSUsthe principal amount and accrued interest payable under each Company Note, (iiv) the vesting status and schedule with respect to Company Options, (v) for each Company Option that was early exercised, the Tax status of each such Company Option under Section 422 of the Code, the date of such exercise and the applicable exercise price, (vi) the calculation of Fully-Diluted Company Common Stock, Common Per Share Consideration, Aggregate Exercise Price, (vii) the calculation of aggregate cash amounts payable (before withholding Taxes) to each such Converting Holder pursuant to Section 1.3(a)(i) and Section 1.3(a)(ii) or, with respect to any Promised Optionholder, the aggregate cash amounts payable to such Promised Optionholder (before withholding Taxes) pursuant to the terms set forth in his or her Promised Option Waiver delivered to Acquirer at or prior to the Closing (such amounts in the aggregate for all Promised Optionholders, the “Promised Option Payments”), the total amount of payroll Taxes to be withheld from the portion of Option Payments and Promised Option Payments payable as of the Closing (after taking into account of the withholding of the Holdback Amount and the Expense Fund Amount), and in the case of Company Optionholders, whether the Company Optionholder is an Employee Optionholder or a Non-Employee Optionholder and in the case of Promised Optionholders, whether a Promised Optionholder is an Employee Promised Optionholder or a Non-Employee Promised Optionholder, (viii) the vesting schedule with respect to the aggregate cash amounts payable to each Key Employee pursuant to Section 1.3(a), as set forth in the Vesting Agreement executed by such Key Employee, (ix) the calculation of each Converting Holder’s Pro Rata Share of the Holdback Amount (including with respect to each Key Employee, the amount of Revested Cash that is contributed by such Key Employee into the Holdback Fund and the vesting schedule thereof) and the Expense Fund Amount, (x) a funds flow memorandum setting forth applicable required Tax withholdings as wire transfer instructions and other information reasonably requested by Acquirer and (xi) for each share of outstanding Company Capital Stock that constitutes a “covered security” under Section 6045(g) of the Code, all information necessary to satisfy the cost basis reporting requirements with respect to such Company Capital Stock, including the cost basis and the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount acquisition of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)shares.
Appears in 1 contract
Samples: Merger Agreement (PubMatic, Inc.)
Spreadsheet. The Company will cause to be prepared and delivered deliver to Parent, at least five Business Days before or prior to the Closing, a spreadsheet, spreadsheet in a form reasonably acceptable to Parent and the Payment Paying Agent, dated and setting forth which spreadsheet will set forth, as of the Closing Date, the following information relating to the holders of Company Units, other securities convertible into Company Units, Capital Stock and Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names of all of the holders of Company Capital Stock and Company Options and their respective addresses (including email addresses), and to the extent practicableKnowledge of the Company, of all such holders; Tax domicile, (b) the number and type kind of shares of Company Units or other securities Capital Stock held by, or subject to Company Options held by such Persons and, in the Company Optionscase of shares, Company RSUsthe respective certificate numbers or an indication that the shares are Book-Entry Shares, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as aggregate Closing Per Share Preferred Consideration payable to each holder of the Closing Date for each Company Option; Series A Preferred Stock, (d) the conversion price per unit in effect as of the aggregate Closing Date for any securities that are convertible into Company Units and the type Per Share Common Consideration payable to each holder of Company Units into which the securities are convertible; Common Stock, (e) the cash amount aggregate consideration payable to such each holder in respect of the cancellation of such holder’s a Company Units and In-the-Money Vested Options or other securities Option pursuant to Section 1.4 or Section 1.6; 2.8(a)(1), (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the dollar amount of the applicable required Tax withholdings as Holdback Amount and the percentage of the date the Spreadsheet is provided Holdback Amount attributable to each holder of Company Units, Company Capital Stock and In-Money Options, (g) the dollar amount of the Regular Indemnification Escrow Amount and the percentage of the Regular Indemnification Escrow Fund attributable to each holder of Company RSUs, Retention RSUs Capital Stock and Company Restricted Units; Options who is an Escrow Participant, (h) the dollar amount of the Special Indemnification Escrow Amount and the percentage of the Special Indemnification Escrow Fund attributable to each holder of Company Capital Stock and Company Options who is an Escrow Participant, (i) the Escrow Pro Rata Portion and the Holdback Pro Rata Portion, (j) the aggregate amount of all outgoing wires principal and interest owed by a Person to the Payment AgentCompany under each Loan Outstanding, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto whether or which Parent may reasonably request at least five Business Days before not each payment made under this Agreement is subject to Tax withholding (but not the amount of withholding thereof), (l) the date of grant and exercise price per share for each Company Option, and (m) the Company’s calculations of Closing Date Consideration, Closing Per Share Common Consideration, Closing Per Share Preferred Consideration, Estimated Closing Cash, Estimated Closing Indebtedness, Estimated Merger Consideration, Estimated Positive Working Capital Adjustment or Estimated Negative Working Capital Adjustment (as applicable), Estimated Transaction Expenses, Fully Diluted Company Common Stock, Fully Diluted Company Common Stock of Escrow Participants, Nominal Per Share Common Consideration and Nominal Per Share Preferred Consideration (the “Spreadsheet”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Advanced Energy Industries Inc)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared Buyer and delivered to Parentthe Seller Representative, at least five Business Days before or prior to the Closing, a spreadsheet, spreadsheet (the “Spreadsheet”) in a the form reasonably acceptable to Parent and the Payment AgentBuyer, which Spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs the Closing Date and Company Restricted Unitsimmediately prior to the Closing: (a) the names of all the Company Stockholders, Company Awardholders and their respective street addresses, email addresses and telephone numbers, Israeli identification number (and where available, taxpayer identification numbers) and bank account details (including email addressesthe respective bank name and number, branch name and address, swift number and account number), to the extent practicable, of all such holders; (b) whether such Person is or was an employee of the Company; (c) the number and type kind of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs Awards or Company Restricted Units Warrants held by, such Persons; (c) Persons and, in the exercise price per unit in effect as case of outstanding certificated shares, the Closing Date for each Company Optionrespective certificate numbers; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Company Capital Stock underlying subject to and the exercise price per share in effect for each holderCompany Award and Company Warrant; (e) the vesting status and schedule with respect to the Company Awards, Company Warrant, and Company Capital Stock and terms of the Company’s Substitute Options rights to repurchase such unvested Company Capital Stock (including the repurchase price payable per share under each share of unvested Company Capital Stock); (f) the Tax status of each share of Company Capital Stock and Replacement RSUsCompany Award under Section 422 of the Code or, if applicable, under the Israeli Tax Code (including status as a Company 102 Share, Company 102 Option or Company 3(i) Option); (g) state the Estimated 2013 Revenue Amount, the Transaction Expenses, the Buyer Loan Amount, the Buyer Stock Price Per Share, the Fully-Diluted Company Capital Stock Amount and the Seller Company Capital Stock Amount, (h) the calculation of the Estimated Aggregate Consideration Value, the Estimated Aggregate Net Consideration Amount, the Estimated Equity Exchange Ratio, the Estimated Aggregate Seller Amount, the Estimated Aggregate Non-Buyer Amount, and the Post-Closing Adjustment Initial Holdback Amount, the Estimated Seller Closing Amount and the Estimated Seller Closing Amount Per Share; (i) without derogating from Buyer’s rights under Section 1.10(a), the tax withholding rate and the total amount of Taxes (including for income, payroll, social security and other Taxes) to be deducted and withheld from the applicable required Tax withholdings as of Estimated Aggregate Net Consideration Amount that each Company Securityholder immediately prior to the date the Spreadsheet Closing is provided attributable entitled to each holder of Company Units, Company Options, Company RSUs, Retention RSUs receive pursuant to Section 1.2(a) and Company Restricted Units; (b) and (j) the aggregate amount Pro Rata Share of all outgoing wires to each Indemnifying Person and the Payment Agentinterest of each Indemnifying Person in the Indemnity Holdback Amount (for purposes hereof, also setting forth separately calculations based on the Company General Indemnity Holdback Percentage and any of its Subsidiaries in respect of payments to be made to holders of Company Units the Special Indemnity Holdback Percentage) and Inthe Post-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)Adjustment Holdback Amount.
Appears in 1 contract
Spreadsheet. The Company will cause shall deliver to be prepared and delivered to Parent, at least five Business Days before Parent a spreadsheet (the Closing, a spreadsheet, “Spreadsheet”) in a form reasonably acceptable satisfactory to Parent Parent, which spreadsheet shall be certified as complete and correct by the Payment Agent, dated and setting forth Chief Executive Officer of the Company as of the Closing and which shall include as of the following information relating to Closing, (i) all Shareholders and their respective addresses, indicating whether such holder is a current or former employee of the holders of Company UnitsCompany, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units Shares held by such Shareholder, the respective certificate numbers of Company Shares issued to such Shareholder, the date of acquisition of such Company Shares, Per Share Cash Consideration and Per Share Parent Stock Consideration to be paid to such Shareholder, the Pro Rata Portion of each Shareholder, the Preferred Share Preference Per Share amount to be paid to such Shareholder, if any, the S-3 Pro Rata Portion of each Shareholder, the amount of cash to be deposited into the Escrow Fund on behalf of such Shareholder pursuant to Section 1.2(d), and (ii) all holders of Company Options and their respective addresses, whether such holder is an employee, consultant, director or other securities held byofficer of the Company or of an Affiliated Entity (as defined in the Plan), or subject to the number of Company Non-Voting Common Shares underlying each such Company Option, the grant dates of such Company Options, the vesting schedule with respect to such Company RSUsOptions, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise strike price per unit in effect as of the Closing Date for each such Company Option; (d) , the conversion price per unit in effect as Option Exchange Ratio, the aggregate Unvested Option Consideration, the number of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Parent Options or other securities issuable pursuant to Section 1.4 or Section 1.6; (f1.2(e)(i) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company UnitsOptions that are outstanding, unvested and in-the-money immediately prior to the Effective Time, the portion of the Vested Option Consideration payable to each holder of Company OptionsOptions that are outstanding, vested and in-the-money immediately prior to the Effective Time and if the holder of the Company RSUsOption is a Participating Optionholder, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires cash to be deposited into the Escrow Fund on behalf of such Participating Optionholder pursuant to Section 1.2(d) and the Pro Rata Portion of such Participating Optionholder. The Company shall deliver the Spreadsheet three Business Days prior to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)Date.
Appears in 1 contract
Spreadsheet. The Company will cause shall deliver to be prepared and delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable to Parent Acquiror and the Payment AgentExchange Agent a spreadsheet (the “Spreadsheet”) substantially in the form attached hereto as Schedule 6.8, dated which spreadsheet shall be certified as complete and setting forth correct by the Chief Executive Officer and Chief Financial Officer of the Company as of the Closing the following information relating to the holders of Company Unitsand which shall include, among other securities convertible into Company Unitsthings, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date Closing, (i) all Selling Shareholders and their respective addresses as reflected in the Company’s records, indicating whether such holder is an employee or not an employee, the number of Company Shares held by such persons (including whether such shares are Company Ordinary Shares or Company Preferred Shares, the respective certificate numbers, whether such shares are subject to a repurchase right by the Company (including, for each Company Option; (d) certificate, the conversion price per unit in effect number of shares that are vested as of the Closing Date for any securities that are convertible into Company Units Closing) and the type liquidation preference applicable to each Company Preferred Share), the date of acquisition of such shares, the Preferred Share Initial Cash Distribution Amount applicable to each holder of Company Units into which Preferred Shares, the securities are convertible; (e) Ordinary Share Initial Cash Distribution Amount applicable to each holder of Company Ordinary Shares, the cash amount payable number of Acquiror Common Stock to such holder in respect of the cancellation of such be issued to each holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Acquiror Common Stock underlying to be deposited into the Escrow Fund on behalf of each holder’s Substitute Options , and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent the Exchange Agent and/or the Escrow Agent may reasonably request at least five request, and (ii) all holders of Company Share Options and Company Warrants and their respective addresses, as reflected in the Company’s records, whether each such holder is an employee or not an employee, the number of shares of Company Ordinary Shares or Company Preferred Shares underlying each such Company Share Option and Company Warrant, the grant dates of such Company Share Options and Company Warrants and the vesting arrangement with respect to such Company Share Options and Company Warrants and indicating, with respect to each Company Share Option, whether such Company Share Options are incentive stock options or non-qualified stock options and such other information relevant thereto or which Acquiror may reasonably request. The Company shall deliver the Spreadsheet three Business Days before prior to the Closing Date (the “Spreadsheet”)Date.
Appears in 1 contract
Samples: Transaction Agreement (Avocent Corp)
Spreadsheet. The Company will cause shall prepare and deliver to be prepared and delivered to ParentAcquirer, at least five Business Days before the Closingin accordance with Section 5.12, a spreadsheetspreadsheet (the “Spreadsheet”) in form and substance reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: immediately prior to the Closing:
(a) the names and addresses (including email addresses), to the extent practicable, of all such holders; of Company Securityholders and their respective addresses and e-mail addresses;
(b) the number and type of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs Options or Company Restricted Units Warrants held by, such Persons; Company Securityholders and, in the case of outstanding shares, the respective certificate or book-entry numbers;
(c) the number of shares of Company Capital Stock subject to and the exercise price per unit share in effect as of the Closing Date for each Company Option; Option and Company Warrant;
(d) the conversion price per unit in effect as number of the Closing Date for any securities that are convertible into Company Units and the type shares of Company Units into which the securities are convertible; (e) the cash amount payable Capital Stock subject to such holder in respect of the cancellation of such holder’s Company Units In-the-Money Options and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; Warrants;
(e) the calculation of Fully Diluted Company Common Stock, the Per Share Consideration, the Per Share Total Value, the Per Share Cash Percentage, the Per Share Stock Percentage, for each Company Option, the Option Consideration for such Company Option, and for each Company Warrant, the Warrant Consideration for such Company Warrant;
(f) the Unit General Escrow Contributioncalculation of the aggregate amount of cash and Acquirer Common Stock (before withholding Taxes, Unit Litigation Escrow Contributionif any) payable or issuable to each such Company Securityholder pursuant to Section 1.3(a) and, Unit Representative Fund Contributionwith respect to any payments that would constitute compensation, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); whether any payroll or employment Taxes are required to be withheld from such payment;
(g) whether each Company Stockholder’s Pro Rata Share (expressed as a Person is an Installment Party and if so, such Person’s Unit Installment Amount; percentage);
(h) the number following information with respect to each of the shares of Parent Common Company Capital Stock underlying each holder’s Substitute Options described in clause (b) of this Section 5.8 that is a “covered security” within the meaning of Treasury Regulation Section 1.6045-1(a)(15), for federal tax purposes and Replacement RSUsto the knowledge of the Company, (i) the date such shares of Company Capital Stock were originally purchased (or the holding period otherwise started) and (ii) the Company Stockholder’s adjusted tax basis in such shares of Company Capital Stock;
(i) if a Company Securityholder is a borrower under a promissory note with the Company or any Subsidiary or is otherwise indebted to the Company for any monetary amount, the amount of the applicable required Tax withholdings owed by such Company Securityholder (including all accrued interest thereon) as of the date Effective Time which shall be deducted from the Spreadsheet is provided attributable amount of cash payable in connection with the Closing to such Company Securityholder; and
(j) a funds flow memorandum setting forth applicable wire transfer instructions for each holder of Company Units, Debt and each Person to whom Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, Transaction Expenses are payable as applicable, the Escrow Agent and any third-party in respect of the payment Closing as set forth in the Statement of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”).
Appears in 1 contract
Samples: Merger Agreement (Veracyte, Inc.)
Spreadsheet. The Company will cause to be prepared and delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable shall deliver to Parent and the Payment AgentExchange Agent a spreadsheet (the “Spreadsheet”) substantially in the form attached hereto as Schedule 5.21, dated which spreadsheet shall be certified as complete and setting forth correct by the Chief Executive Officer and Chief Financial Officer of the Company as of the Closing and which shall include, among other things, as of the following Closing, (i) all Stockholders and their respective addresses, the number of shares of Company Capital Stock held by such persons (including whether such shares are Company Common Stock, Company Series A Preferred Stock and the Company Series B Preferred Stock), the respective certificate numbers, whether such shares constitute Company Unvested Common Stock (including, for each certificate, the number of shares that are vested as of the Closing), and the liquidation preference and conversion ratio applicable to each share of Company Preferred Stock, the date of acquisition of such shares, the Pro Rata Portion of Merger Cash to be deposited in the Escrow Fund and Tax Escrow Fund on such holder’s behalf pursuant to Section 1.8(b), the number of Merger Shares to be issued and amount of Merger Cash to be paid to each holder, the number of Merger Shares and amount of cash, if any, to be paid by the Stockholder in settlement of tax withholding obligations pursuant to Section 1.6(e) and outstanding Stockholder loans pursuant to Section 1.6(f), and such other information relating to relevant thereto or which the Exchange Agent may reasonably request, and (ii) all holders of Company UnitsOptions and their respective addresses, other securities convertible into the number of shares of Company UnitsCapital Stock underlying each such Company Option, the grant dates and exercise prices of such Company Options and the vesting arrangement with respect to such Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option (other than Non-Assumed Options), and indicating, with respect to each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into , whether such Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if soincentive stock option or a non-qualified stock option, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options to which such Company Option shall become exercisable pursuant to Section 1.6(c) hereof and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five request. The Company shall deliver the Spreadsheet three (3) Business Days before prior to the Closing Date (the “Spreadsheet”)Date.
Appears in 1 contract
Samples: Merger Agreement (Harmonic Inc)
Spreadsheet. The Company will cause shall prepare and deliver to Acquirer a spreadsheet (the “Spreadsheet”), which spreadsheet shall be prepared and delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable to Parent and the Payment Agent, dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: immediately prior to the Closing:
(a) the names of all Company Stockholders, Company Optionholders and Company Warrantholders, their respective email addresses (including email addresses)and, to the extent practicablein the possession of the Company, their street addresses, telephone number, taxpayer identification numbers (if any) or Permanent Account Number (if such Company Equityholder is a tax resident of all India or otherwise has a tax history in India) and whether such holders; Company Stockholder is an Indian Resident Company Stockholder;
(b) to the number extent applicable, any designations made pursuant to Section 8 of a Joinder Agreement;
(c) the number, class and type kind of shares of Company Units or other securities Capital Stock held by, or subject to the Company Options, Company RSUs, Retention RSUs Options or Company Restricted Units Warrants held by, such Persons; (c) Persons and, in the exercise price per unit in effect as case of outstanding shares, the Closing Date for each Company Option; respective certificate numbers;
(d) if a Company Stockholder holds Unvested Company Shares, (i) the conversion price per unit in effect as vesting schedule for such Unvested Company Shares and the terms of the Closing Date Company’s right to repurchase such Unvested Company Shares (including the repurchase price payable per share under each Unvested Company Share), (ii) the amount of Unvested Share Payments payable in respect of such Unvested Company Shares, the vesting schedule for any securities that are convertible into Company Units such Unvested Share Payments and the type repurchase price payable with respect to each dollar of such Unvested Share Payments and (iii) whether or not such Unvested Company Units into which Shares are subject to a valid and timely-filed election statement under Section 83(b) of the securities are convertible; Code;
(e) the cash amount payable to such holder in respect Tax status of each Company Option under Section 422 of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; Code;
(f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage vesting status and Unit Litigation Funding Percentage schedule (including the terms of each Indemnifying Securityholder and Indemnifying Founder, as any acceleration thereof after giving effect to any applicable (together Benefits Waiver) with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); respect to Company Options;
(g) whether a Person is an Installment Party for each Company Option that was exercised prior to the Closing Date, (i) the Tax status of each such Company Option under Section 422 of the Code, if applicable, or any applicable foreign Tax law and if so, (ii) the date of such Person’s Unit Installment Amount; exercise and the applicable exercise price;
(h) the calculation of the Aggregate Accredited Cash Consideration, Aggregate Accredited Stock Consideration, Aggregate Consideration, Aggregate Exercise Price, Aggregate Exercise Price of Cashed Out Options and Warrants, Aggregate Stockholder Cash Consideration, Aggregate Stockholder Consideration, Aggregate Unaccredited Cash Consideration, Aggregate Unvested Option Consideration, Aggregate Unvested Stock Cash Consideration, Aggregate Unvested Stock Consideration, Aggregate Vested Option Cash Consideration, Aggregate Warrant Consideration, Aggregate Warrant Cash Consideration, the Aggregate Warrant Stock Consideration, Exchange Ratio, Fully-Diluted Common Stock, Per Share Accredited Cash Consideration, Per Share Accredited Stock Consideration, Per Share Consideration and Vested Suitable Investor Common Stock;
(i) in respect of Continuing Employees who hold Unvested Company Options, the number of Converted Options and the adjusted exercise price;
(j) the amount of cash, the number of shares of Parent Acquirer Common Stock underlying and number of options to purchase shares of Acquirer Common Stock payable and/or issuable to each holder’s Substitute Company Securityholder in exchange for the shares of Company Capital Stock, Company Options and Replacement RSUs, Company Warrants held by such Person on a certificate-by-certificate basis;
(ik) the amount each Converting Holder’s Pro Rata Share of the applicable required Tax withholdings Indemnity Escrow Amount (expressed both in dollars and as a percentage);
(l) each Converting Holder’s Pro Rata Share of the date Adjustment Escrow Amount (expressed both in dollars and as a percentage);
(m) each Converting Holder’s Pro Rata Share of the Spreadsheet is provided attributable to each holder of Company UnitsExpense Fund Amount (expressed both in dollars and as a percentage); and
(n) a funds flow memorandum setting forth, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agentextent in the possession of, or readily obtained by, the Company, applicable wire transfer instructions and other information reasonably requested by Acquirer; provided that, for the avoidance of doubt, to the extent the Company and does not provide wire instructions for any of its Subsidiaries in respect of payments to be made at Closing as contemplated by this Agreement, Acquirer shall not be required to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) make such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)payments until such wire instructions have been obtained.
Appears in 1 contract
Samples: Merger Agreement (SentinelOne, Inc.)
Spreadsheet. The Company will cause to be prepared and delivered to Parent, at least five Business Days before the Closing, a spreadsheet, in a form reasonably acceptable shall deliver to Parent and the Payment AgentExchange Agent a spreadsheet (the “Spreadsheet”) in a form acceptable to Parent, dated which spreadsheet shall be certified as complete and setting forth correct by the Chief Executive Officer of the Company as of the Closing the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect which shall include as of the Closing Date for each Company Option; Closing: (di) the conversion price per unit in effect as all Shareholders and their respective addresses, indicating whether such holder is a current or former employee of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertibleCompany, or not; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Company Capital Stock held by such persons (including whether such shares are Company Common Stock or Company Series A Preferred Stock, the respective certificate numbers; the date of acquisition of such shares; the formulas for the calculation of the percentage of Total Closing Cash Consideration, Total CY12 Earnout Consideration, Total CY13 Earnout Consideration and any Escrow Release to be paid to such holder; and such other information relevant thereto or which Parent or the Exchange Agent may reasonably request; (ii) all holders of Company Vested Options and their respective addresses, indicating whether each such holder is a current or former employee of the Company or not; the number of shares of Company Common Stock underlying each holder’s Substitute such Company Vested Option; the grant dates of such Company Vested Options and Replacement RSUs, (i) the amount vesting arrangement with respect to such Company Vested Options and indicating the strike price for each Company Vested Option; whether such Company Vested Options are incentive stock options or non-qualified stock options; the formulas for the calculation of the applicable required Tax withholdings as portion of the date the Spreadsheet is provided attributable to each holder of Company UnitsTotal Closing Cash Consideration, Company OptionsTotal CY12 Earnout Consideration, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agent, the Company Total CY13 Earnout Consideration and any of its Subsidiaries in respect of payments Escrow Release to be made paid with respect to holders of such Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party ExpensesOption; and (k) such other information relevant thereto or which Parent may reasonably request at least five request; (iii) the Parent Common Stock due to such Effective Time Holders pursuant to the Stock Consideration Agreements; and (iv) the formulas for calculation of the Banker Contingent Fees. The Company shall deliver the Spreadsheet on or prior to the date three (3) Business Days before prior to the Closing Date (the “Spreadsheet”)Date.
Appears in 1 contract
Spreadsheet. The Company will cause to be prepared and delivered to Parent, at least five No less than three Business Days before the prior to Closing, the Company shall prepare and deliver to Acquirer a spreadsheetspreadsheet (the “Spreadsheet”) in the form and substance reasonably satisfactory to Acquirer, in a form reasonably acceptable to Parent and the Payment Agent, which spreadsheet shall be dated and setting forth as of the Closing Date and shall set forth all of the following information relating (in addition to the holders other required data and information specified therein), as of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: immediately prior to the Closing:
(a) the names of all Company Shareholders, Company Optionholders and Company Warrantholders, and their respective street and e-mail addresses (including email addressesif available), to telephone number (if available), Israeli identification number (if available), taxpayer identification numbers (if any) and (other than in respect of Company Securityholders whose Company Options or Company Shares are held by the extent practicable102 Trustee in respect of which the bank information shall be that of the 102 Trustee) bank information (if available) (including the respective bank name and number, of all such holders; branch name and address, swift number, account number and other wire transfer information);
(b) the number number, class and type series of Company Units or other securities Shares held by, or subject to by such Persons and the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; respective certificate numbers;
(c) the number, class and series of Company Shares subject to, and if applicable, the exercise price per unit share in effect as of the Closing Date for for, each Company Option; Option and Company Warrant;
(d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute subject to the Assumed Options;
(e) the vesting status, schedule and whether such Company Optionholder has delivered a duly executed Option Cancellation and Conversion Agreement to Acquirer with respect to Company Options and Replacement RSUsUnvested Company Shares;
(f) for each Company Option that was exercised prior to the date of delivery of the Spreadsheet, (i) the amount Tax status of such Company Option and the shares acquired thereby under Section 422 of the Code, if applicable, or any applicable required foreign Tax withholdings as law, (ii) the date of such exercise and whether such Company Option was granted and is subject to Tax pursuant to Section 3(i) of the date Ordinance or Section 102 of the Spreadsheet is provided attributable to each holder Ordinance and the applicable subsection of Section 102 of the Ordinance;
(g) the calculation of the (i) Aggregate Consideration, (ii) the Company UnitsSeries A Preferred Shares Aggregate Liquidation Preference, (iii) the Company OptionsSeries A-1 Preferred Shares Aggregate Liquidation Preference, (iv) Company RSUs, Retention RSUs Series A and Company Restricted Units; Series A-1 Aggregate Preferred Shares Liquidation Preference, (jv) the aggregate amount of all outgoing wires to Fully-Diluted Company Series A Shares, (vi) the Fully-Diluted Company Series A-1 Shares, (vii) the Participating Consideration, (viii) the Fully-Diluted Company Shares, (ix) the Participating Per Share Payment AgentAmount (including, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment holders of Third Party Expenses; Unvested Company Shares, the number of Unvested Company Shares and the Unvested Cash), (x) Company Series A Preferred Per Share Payment Amount, (xi) Company Series A-1 Preferred Per Share Payment Amount, (xii) in respect of Company Employees who hold Unvested Company Options, the number of Assumed Options, and (kxiii) such each Indemnifying Party’s Pro Rata Share of the Adjustment Escrow Amount, the Indemnity Escrow Fund and the Shareholders’ Agent Expense Amount (expressed in both in dollars and as a percentage); and
(h) a funds flow memorandum setting forth applicable wire transfer instructions and other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “Spreadsheet”)requested by Acquirer.
Appears in 1 contract
Spreadsheet. The (a) Attached hereto as Schedule 1.5 is a spreadsheet (the “Spreadsheet”), which includes with respect to each Seller: (i) such Seller’s name, address and email address; (ii) the number, class and series of shares of Company Capital Stock held by such Person and the name of any Person with any community or marital property interest therein; (iii) the respective certificate number(s) representing such shares; (iv) the respective date(s) of acquisition of such shares; (v) the portion of the Purchase Price to be paid to such Seller at the Closing; (vi) whether any Taxes are required to be withheld from the Purchase Price payable to such Seller (but not the amount of Tax withholding required; and assuming for this purpose that (A) the Company delivers the FIRPTA Certificate in accordance with Section 4.6, and (B) each Seller delivers an IRS Form W-9 or the appropriate series of IRS Form W-8, or another exemption applies, such that no withholding is required pursuant to Section 3406 of the Code); and (vii) such other information as Purchaser may reasonably request.
(b) Not later than three (3) Business Days prior to the Closing Date, the Company will cause prepare and deliver to Purchaser (i) an estimated schedule of all Liabilities of the Company as of the close of business on the day immediately preceding the Closing Date (the “Estimated Closing Date Schedule”) including the Company’s good faith estimate of (A) the amount of Indebtedness of the Company and its Subsidiaries as of immediately prior to the Closing (the “Estimated Indebtedness”) and (B) the total Acquisition Expenses (the “Estimated Acquisition Expenses”). The Estimated Closing Date Schedule will be prepared in good faith in accordance with this Section 1.5 and delivered will be subject to ParentPurchaser’s review, at least five comment and approval. The Estimated Closing Date Schedule will be accompanied by all relevant backup materials and schedules reasonably requested by Purchaser, including final invoices for all Acquisition Expenses and written payment instructions for all Indebtedness, Acquisition Expenses and Closing Consideration.
(c) Not less than three (3) Business Days before prior to the Closing, a spreadsheetClosing Date the Company will prepare and deliver to Purchaser, in a form reasonably acceptable to Parent Purchaser, an updated Spreadsheet that reflects any changes permitted by this Agreement, including any changes to the Closing Consideration or the portion thereof payable to the Sellers as a result of changes in the Estimated Indebtedness or Estimated Acquisition Expenses. The Company will cause the Spreadsheet to be certified as true, complete and correct by the Payment Agent, dated and setting forth as President of the Closing the following information relating to the holders of Company Units, other securities convertible into Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units: (a) the names and addresses (including email addresses), to the extent practicable, of all such holders; (b) the number and type of Company Units or other securities held by, or subject to the Company Options, Company RSUs, Retention RSUs or Company Restricted Units held by, such Persons; (c) the exercise price per unit in effect as of the Closing Date for each Company Option; (d) the conversion price per unit in effect as of the Closing Date for any securities that are convertible into Company Units and the type of Company Units into which the securities are convertible; (e) the cash amount payable to such holder in respect of the cancellation of such holder’s Company Units and In-the-Money Vested Options or other securities pursuant to Section 1.4 or Section 1.6; (f) the Unit General Escrow Contribution, Unit Litigation Escrow Contribution, Unit Representative Fund Contribution, Option General Escrow Contribution, Option Representative Fund Contribution, Aggregate Escrow Funding Percentage and Unit Litigation Funding Percentage of each Indemnifying Securityholder and Indemnifying Founder, as applicable (together with each Indemnifying Securityholder’s Unit Escrow Funding Percentage, Option Escrow Funding Percentage, and each Indemnifying Founder’s Unit Litigation Funding Percentage, separately listed); (g) whether a Person is an Installment Party and if so, such Person’s Unit Installment Amount; (h) the number of shares of Parent Common Stock underlying each holder’s Substitute Options and Replacement RSUs, (i) the amount of the applicable required Tax withholdings as of the date the Spreadsheet is provided attributable to each holder of Company Units, Company Options, Company RSUs, Retention RSUs and Company Restricted Units; (j) the aggregate amount of all outgoing wires to the Payment Agentcertification, the Company and any of its Subsidiaries in respect of payments to be made to holders of Company Units and In-The-Money Vested Options, as applicable, the Escrow Agent and any third-party in respect of the payment of Third Party Expenses; and (k) such other information relevant thereto or which Parent may reasonably request at least five Business Days before the Closing Date (the “SpreadsheetSpreadsheet Certificate”).
Appears in 1 contract
Samples: Stock Purchase Agreement (Sana Biotechnology, Inc.)