Spreadsheet. At least three (3) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to Parent: (a) calculation of the Total Consideration and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount; (b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio; (c) with respect to each Stockholder: (i) the name and address of such holder, (ii) whether such holder is a current or former employee of the Company, (iii) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numbers, (iv) the date of acquisition of such shares, (v) whether any Taxes are to be withheld in accordance with Section 1.8 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (vi) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (vii) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ix) (on a certificate-by-certificate basis and in the aggregate), and (xi) whether such Stockholder is an Unaccredited Investor; (d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii); (e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, (ix) the exercise price per share of such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), if any; (f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iv) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing; (g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and (h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amount.
Appears in 1 contract
Spreadsheet. (a) At least three (3) Business Days prior to the Closing, the Company shall deliver to Parent Purchaser prior to the Closing a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”) setting forth the following information), in form and substance reasonably satisfactory to Parent:
(a) calculation of the Total Consideration and all components thereofwhich shall include, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount;
(b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio;
(c) with respect to each StockholderSelling Securityholder and Optionholder: (i) the name name, physical address, and email address of such holder, ; (ii) whether such holder is a current or former employee of the Company, ; (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers, numbers of all certificates evidencing all such shares; (iv) with respect to any shares of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date of acquisition and adjusted U.S. income Tax basis of such shares, ; (v) whether the exercise price of each Company Option held by such holder, (vi) any Taxes that are required to be withheld in accordance with Section 1.8 under applicable Law from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i2.1(a) (Company Capital Stock) or Section 1.6(b)(ii2.1(b) (Company Options), ; (vivii) the cash consideration aggregate Estimated Upfront Payment or Upfront Option Cash Out Amount that such holder is entitled to receive pursuant to Section 1.6(b)(i2.1(a) or (Company Capital Stock) and Section 1.6(b)(ii2.1(b) (Company Options) (on a certificate-by-certificate basis and in the aggregate), net of the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (viiEscrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); (viii) the stock consideration amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount), (ix) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expenses, (xii) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information.
(b) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaser: (i) the aggregate Milestone Payment that such holder is entitled to receive pursuant to Section 1.6(b)(i) 3.1 (on a certificate- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ixMilestone Consideration) (on a certificate-by-certificate basis and in the aggregate), ) on such Milestone Payment date and (xi) whether such Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, the following updated information for each holder: (ixA) the exercise price per share name, physical address, and email address of such Company Option or Company RSU following holder; (B) any Taxes that are required to be withheld under applicable Law from the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration Milestone Payment that such holder is entitled to receive in accordance with Section 1.6(c), if any;
(f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to on such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), Milestone Payment date; and (ivC) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amountholder’s wire transfer information.
Appears in 1 contract
Spreadsheet. At least Not less than three (3) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to ParentParent and accompanied by documentation reasonably satisfactory to Parent in support of the calculation of the information set forth therein:
(a) calculation calculations of the Total Consideration Value and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount;
(b) calculation of the Per Share Parent Stock Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration Holdback Amount, and the Exchange Ratio;
Expense Fund Amount; (cb) with respect to each StockholderShareholder: (i) the name and address of such holder, and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the CompanyCompany or any of its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 1.6(e)), (iv) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numbersnumbers and, with respect to any shares that were acquired as a result of the conversion of the Company Promissory Notes, the number, class and series of such shares held by such holder, (ivv) the date of acquisition of such sharesshares and, with respect to any shares that were acquired as a result of the conversion of the Company Promissory Notes, the date of such conversion, (vvi) whether any Taxes are to be withheld in accordance with Section 1.8 ý1.10 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (vivii) the Election of such holder and the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (viiviii) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- by-certificate basis and in the aggregate)Shareholder’s Loan Repayment Amount, if any, (viiiix) the Pro Rata Portion of such holder, (ixx) the amount of cash and stock to be deposited into retained and withheld in the Escrow Fund and Representative Escrow Holdback Fund on behalf of such holder pursuant to this Agreement, (xxi) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (xii) the net stock or cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (vvi), (x) and (ixxi) (on a certificate-by-certificate basis and in the aggregate), and (xi) whether such Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (ixiii) the name and address amount of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer cash in lieu of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of fractional shares of Parent Common Stock that will to be issuable paid to such holder following the Closing in accordance with Section 1.6(b)(iii1.6(d) (on a certificate-by-certificate basis and in the aggregate);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, (ix) the exercise price per share of such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), if any;
(f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iv) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amount.
Appears in 1 contract
Spreadsheet. At The Company shall deliver to Parent at least three five (35) Business Days prior to the Closing, the Company shall deliver to Parent Closing a spreadsheet (the “Spreadsheet”) setting forth the following informationCompany’s proposals along with reasonably detailed back-up data and supporting materials, in form which spreadsheet shall be subject to the reasonable review and substance comment of Parent and the final version of which shall be reasonably satisfactory to Parent, with regard to the following information:
(a) calculation of the Total Aggregate Option Cash Consideration and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment AmountRSU Cash Consideration;
(b) calculation of the Per A Share Consideration, the Per Share Cash Consideration, the Per Share Stock Merger Consideration and the Exchange RatioPer L Share Merger Consideration,
(c) calculation of the aggregate Company Transaction Expenses, Cash as of September 30, 2014, Net Working Capital as of September 30, 2014, Outstanding Indebtedness as of September 30, 2014 and the aggregate Negative Transaction Adjustments;
(cd) with respect to each Stockholderholder of Company Shares: (i) the name and address of such holder, (ii) whether such holder is a current or former employee of the Company, (iii) the number, class and series number of shares of Company Capital Class L Common Stock and Class A Common Stock held by such holder and the respective certificate numbers, (iv) the date of acquisition of such shares, (v) whether any Taxes are to be withheld in accordance with Section 1.8 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (viiii) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) 2.02 (on a certificate-by-certificate basis and in the aggregate), if any, and (viiiv) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ix) 2.02 (on a certificate-by-certificate basis and in the aggregate), and (xi) whether such Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, (ix) the exercise price per share of such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), if any;
(f) with respect to each Company WarrantOption: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iiiii) the vesting schedule (including all acceleration provisions) applicable to whether such Company Warrant and the extent to which such Company Warrant Option is vested as of immediately prior to the Effective Time a Vested In-the-Money Option, (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iviii) the exercise price per share and the number, class and series number of shares of Company Capital Class L Common Stock and Class A Common Stock underlying such Company Warrant Option immediately prior to the Closing;, and (iv) the cash consideration that such holder is entitled to receive in accordance with Section 2.04(a); and
(gf) with respect to the Escrowed Shareseach award of Company RSUs: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Personholder thereof, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution grant date of such earn outthereof, (iii) the aggregate number of Company RSUs underlying such award immediately prior to the Closing, and (iv) the cash consideration and aggregate stock consideration comprising the BO Earn Out Amountthat such holder is entitled to receive in accordance with Section 2.04(b).
Appears in 1 contract
Spreadsheet. At least three (3) Business Days prior Prior to the Closing, the Company shall deliver delivered to Parent a spreadsheet (the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to ParentParent and accompanied by documentation in support of the calculation of the information set forth therein:
(a) calculation of the Total Consideration Closing Financial Information, as calculated by the Company using the information set forth in based on the Estimated Closing Statement and all components thereof, including Closing Cash, in accordance with the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amountdefinitions provided in this Agreement;
(b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio;
(c) with respect to each Stockholder: (i) the name and address of such holder, (ii) whether such holder is a current or former employee of the Companyan Accredited Investor, (iii) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numbers, (iv) the date of acquisition of such shares, (v) whether any Taxes are to be withheld in accordance with Section 1.8 1.10 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (viv) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (vii) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- by-certificate basis and in the aggregate), (viiivi) the Pro Rata Portion of such holder, (vii) whether shares of Company Capital Stock held by such Stockholder is a “covered security” (as defined in Section 6045) of the Code or not and, if such share of Company Capital Stock is a “covered security”, the acquisition date and Tax basis of such security, (viii) the amount of cash deemed contributed by such holder into the Escrow Funds pursuant to Section 1.8(a)(iii), (ix) the amount of cash and stock to be deposited deemed contributed by such holder into the Escrow Fund and Stockholder Representative Escrow Fund on behalf of such holder Expense Funds pursuant to this AgreementSection 1.8(a)(iv), and (x) the net stock or cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii1.8(a)(i) after deduction of the amounts referred to in clauses (v), (viii) and (ix) (on a certificate-by-certificate basis and in the aggregate), and (xi) whether such Stockholder is an Unaccredited Investor;
(dc) with respect to each holder of a Company Restricted StockOption: (i) the name and address of the holder thereofholder, (ii) whether such the holder is an employee, consultant, director or officer of the Company or any SubsidiaryAccredited Investor, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (viiiv) whether any Taxes are to be withheld in accordance with Section 1.10 from the consideration that such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior entitled to the Closingreceive pursuant to Section 1.6(c), (viiiv) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU Payment Amount following the Closing in accordance with Section 1.6(c), if applicableany, (ixvi) the exercise price per share of such Company Option stock or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(c), (vii) the amount of cash deducted with respect to such Company Option and deposited into the Escrow Funds pursuant to Section 1.8(a)(iii), (viii) the amount of cash deemed contributed by such holder into the Stockholder Representative Expense Fund pursuant to Section 1.8(a)(iv), (ix) the Pro Rata Portion of such holder with respect to such Company Option, and (x) the net amounts to be paid to such holder in accordance with Section 1.6(c1.6(b)(i) with respect to such Company Option after deduction of the amounts referred to in clauses (iv), if any;(vii) and (viii); and
(fd) with respect to each holder of a Company WarrantRSU: (i) the name and address of the holder thereofholder, (ii) whether the grant date and expiration date thereofholder is an Accredited Investor, (iii) the vesting schedule (including all acceleration provisions) applicable to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iv) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant RSU immediately prior to the Closing;
, (giv) whether any Taxes are to be withheld in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 1.6(d), (v) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(d), (vi) the Pro Rata Portion of such holder with respect to such Company RSU, (vii) the amount of cash deducted with respect to such Company RSU and deposited into the Escrow Funds pursuant to Section 1.8(a)(iii), (viii) the amount of cash deemed contributed by such holder into the Stockholder Representative Expense Funds pursuant to Section 1.8(a)(iv), and (ix) the net stock or cash amounts to be paid to such holder in accordance with Section 1.6(d) with respect to such Company RSU after deduction of the Escrowed Shares: amounts referred to in clauses (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Personiv), (iivii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iiiviii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amountabove.
Appears in 1 contract
Spreadsheet. At least Not less than three (3) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to ParentParent and accompanied by documentation reasonably satisfactory to Parent in support of the calculation of the information set forth therein:
(a) calculation calculations of the Total Consideration and all components thereof, including Total Cash Consideration, Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount;
(b) calculation of Net Working Capital, Aggregate Exercise Price, Closing Stock Consideration, the Per Share Parent Stock Consideration, the Per Share Cash Consideration, the Escrow Amount, Escrow Cash Percentage, the Escrow Stock Percentage, the Escrow Ratio, the Expense Fund Amount, the Retention Based Payment, and the Retention Per Share Parent Stock Consideration and the Exchange RatioConsideration;
(cb) with respect to each Stockholder: (i) the name and address of such holder, and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the CompanyCompany or any of its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 1.6(g)), (iv) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numbers, (ivv) the date of acquisition of such shares, (vvi) whether any Taxes are to be withheld in accordance with Section 1.8 1.12 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (vivii) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (viiviii) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- by-certificate basis and in the aggregate)Stockholder’s Loan Repayment Amount, if any, (viiiix) the Pro Rata Portion of such holder, (ixx) the amount of Parent Common Stock and cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (xxi) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (xii) the amount of Parent Common Stock deposited into the restricted account of the transfer agent on behalf of such holder pursuant to Section 1.9(a), (xiii) the amount of cash to be issued to such holder in respect of the Retention Based Payment (after giving effect to Section 1.6(g)) pursuant to Section 1.9(c)(ii), if applicable, (xiv) the net stock or cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) vi), (x), and (ixxi) (on a certificate-by-certificate basis and in the aggregate), and (xixv) whether the amount of cash in lieu of fractional shares of Parent Common Stock to be paid to such Stockholder is an Unaccredited Investorholder in accordance with Section 1.6(f) (on a certificate-by-certificate basis and in the aggregate);
(dc) with respect to each Issued and Outstanding Company Restricted StockOption: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiaryof its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the number, class and series of shares of Company Capital Stock held questionnaire submitted by such holder as Company Restricted Stock and or at the respective certificate numbersdirection of Parent in accordance with Section 1.6(g)), (iv) the grant datedate and expiration date thereof, (v) whether such Issued and Outstanding Company Option was granted pursuant to the Plan, (vi) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock Issued and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Outstanding Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Issued and Outstanding Company Option or Company RSU is vested as of immediately prior to the First Effective Time (taking into account any Issued and Outstanding Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) Mergers will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vivii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Issued and Outstanding Company Option or Company RSU immediately prior to the Closing, (viiviii) whether such Issued and Outstanding Company Option is a nonstatutory option or qualifies as an incentive stock option as defined in Section 422 of the Code, (ix) whether such holder is a Continuing Employee, Employee or a Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viiix) the number of shares of Parent Common Stock that will whether any Taxes are to be subject to such Company Option or Company RSU following the Closing withheld in accordance with Section 1.6(c1.12 from the consideration that such holder is entitled to receive pursuant to Section 1.6(c)(i), if applicable, (ixxi) the exercise price per share of such Company Option stock or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(c)(i) (on a grant-by-grant basis and in the aggregate), (xii) the Pro Rata Portion of such holder, (xiii) the amount of Parent Common Stock and cash to be deposited into the Escrow Fund on behalf of such holder pursuant to this Agreement, (xiv) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (xv) the amount of Parent Common Stock deposited into the restricted account of the transfer agent on behalf of such holder pursuant to Section 1.9(a), (xvi) the amount of cash to be issued to such holder in respect of the Retention Based Payment (after giving effect to Section 1.6(g)) pursuant to Section 1.9(c)(ii), if applicable, (xvii) the net stock or cash amounts to be paid to such holder in accordance with Section 1.6(c1.6(c)(i) after deduction of the amounts referred to in clauses (x), (xiii) and (xiv) (on a grant-by-grant basis and in the aggregate), (xviii) the amount of cash in lieu of fractional shares of Parent Common Stock to be paid to such holder in accordance with Section 1.6(f) (on a grant-by-grant basis and in the aggregate), (xix) such holder’s Loan Repayment Amount, if anyany and (xx) an indication of whether such holder will, in respect of the consideration payable to such holder in cash, be paid by the Exchange Agent or through the Surviving LLC’s payroll system;
(fd) with respect to each Participating Company WarrantNote: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the grant date and expiration date thereofCompany or any of its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the vesting schedule questionnaire submitted by such holder or at the direction of Parent in accordance with Section 1.6(g)), (including all acceleration provisionsiv) applicable the number, class and series of shares of Company Capital Stock issuable upon the conversion of such Participating Company Note, (v) the date of issuance of such Participating Company Note, (vi) whether any Taxes are to be withheld in accordance with Section 1.12 from the consideration that such holder is entitled to receive pursuant to Section 1.6(d)(i), (vii) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(d)(i) (on a per Participating Company Note basis and in the aggregate), (viii) such holder’s Loan Repayment Amount, if any, (ix) the Pro Rata Portion of such holder, (x) the amount of Parent Common Stock and cash to be deposited into the Escrow Fund on behalf of such holder pursuant to this Agreement, (xi) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (xii) the amount of Parent Common Stock deposited into the restricted account of the transfer agent on behalf of such holder pursuant to Section 1.9(a), (xiii) the amount of cash to be issued to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result holder in respect of the Merger will accelerate Retention Based Payment (after giving effect to Section 1.6(g)) pursuant to Section 1.9(c)(ii), if applicable, (xiii) the net stock or cash amounts to be paid to such holder in full and no longer be subject accordance with Section 1.6(d)(i) after deduction of the amounts referred to any further vestingin clauses (vi), right of repurchase, risk of forfeiture or other such conditions(x), and (ivxi) (on a per Participating Company Note basis and in the aggregate), and (xiv) the amount of cash in lieu of fractional shares of Parent Common Stock to be paid to such holder in accordance with Section 1.6(f) (on a per Participating Company Note basis and in the aggregate); 66 (e) with respect to each Promised Company Option: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) whether such holder is an employee, consultant, director or officer of the Company or any of its Subsidiaries, (iii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Promised Company Warrant Option immediately prior to the Closing;
, (giv) with respect whether such holder is a Continuing Employee or a Non-Continuing Employee (it being understood that such information may be updated at any time prior to the Escrowed Shares: Closing), (iv) the name and address of each Person to whom such shares whether any Taxes are to be distributed withheld in accordance with Section 1.12 from the consideration that such holder is entitled to receive pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such PersonSection 1.6(e)(i), (iivi) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are such holder is entitled to be converted into receive pursuant to Section 1.6(b)(ii1.6(e)(i) (on a grant-by-grant basis and in the aggregate); and
, (h) with respect to the BO Earn Out Amount: (ivii) the name and address Pro Rata Portion of each Person entitled such holder, (viii) the amount of cash to receive a portion be deposited into the Escrow Fund on behalf of such holder pursuant to this Agreement, (ix) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (x) the amount of cash to be issued to such holder in respect of the BO Earn Out Amount and Retention Based Payment pursuant to Section 1.9(c)(ii), if applicable, (xi) the portion cash amount to be paid to such holder in accordance with Section 1.6(e)(i) after deduction of the BO Earn Out Amount attributable amounts referred to in clauses (v), (viii) and (ix) (on a grant-by-grant basis and in the aggregate), (xii) such holder’s Loan Repayment Amount, if any and (xiii) an indication of whether such holder will, in respect of the consideration payable to such Personholder in cash, (ii) be paid by the material terms governing Exchange Agent or through the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amount.Surviving LLC’s payroll system;
Appears in 1 contract
Spreadsheet. At least three (3) Business Days prior to the Closing, the The Company shall deliver has delivered to Parent a spreadsheet attached hereto as Annex B (the “Spreadsheet”) setting forth the following information, in form and substance accompanied by documentation reasonably satisfactory to ParentParent in support of the calculation of the information set forth therein:
(a) the calculation of the Total Stock Consideration and all components thereofValue, including a separate line item for each adjustment thereto in accordance with the definition of “Stock Consideration Value” hereunder (including the Closing Net Working Capital, the Net Working Capital Surplus, if any, the Net Working Capital Shortfall, if any, the Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party the Transaction Expenses, each as of immediately prior to the Tax Amount Effective Time, and the Balance Sheet Adjustment Amountresulting calculation of the Stock Consideration);
(b) the calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange RatioAmount;
(c) with respect to each Stockholder: (i) the name name, known address and known e-mail address of such holder, (ii) whether such holder is a current or former employee of the Company, (iii) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numberswhether such shares of Company Capital Stock are Section 102 Shares, (iv) the date of acquisition of such shares, (v) whether any Taxes are to be withheld in accordance with Section 1.8 from the gross consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii1.5(b)(i), and (viv) its Stockholder Pro Rata Portion; and
(d) with respect to each Optionholder: (i) the cash name, address and e-mail address of such holder, (ii) whether such holder is an Employee the Company, (iii) the exercise price and the number and class of Company Capital Stock issuable upon exercise of any Company Options held by such Optionholder and whether such Company Options are Section 102 Options and the applicable sub-section of Section 102, (iv) the gross consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (vii) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ix) (on a certificate-by-certificate basis and in the aggregate1.5(b)(ii), and (xi) whether such Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, (ix) the exercise price per share of such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), if any;
(f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iv) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amountits Equityholder Pro Rata Portion.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Otonomo Technologies Ltd.)
Spreadsheet. At least three (3) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to Parent:
(a) calculation of the Total Consideration and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount;
(b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio;
(c) with respect to each Stockholder: (i) the name and address of such holder, (ii) whether such holder is a current or former employee of the Company, (iii) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numbers, (iv) the date of acquisition of such shares, (v) whether any Taxes are to be withheld in accordance with Section 1.8 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (vi) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (vii) the stock consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- -42- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ix) (on a certificate-by-certificate basis and in the aggregate), and (xi) whether such Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, (ix) the exercise price per share of such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), if any;
(f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iv) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amount.
Appears in 1 contract
Samples: Merger Agreement
Spreadsheet. At least three Not less than five (35) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to ParentParent and accompanied by documentation reasonably satisfactory to Parent in support of the calculation of the information set forth therein:
(a) calculation calculations of the Total Consideration and all components thereof, including as well as the Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount Closing Indebtedness, Net Working Capital, and the Balance Sheet Adjustment AmountPer Share Merger Consideration (collectively, the “Closing Financial Information”);
(b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio;
(c) with respect to each Stockholder: (i) the name and address of such holder, and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the CompanyCompany or any of its Subsidiaries, (iii) the number, class and series of shares of Company Capital Stock held by such holder and the respective certificate numbersholder, (iv) the date of acquisition of such shares, (v) whether any Taxes are to be withheld in accordance with Section 1.8 1.9 from the consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii), (vi) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) or Section 1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), (vii) the stock gross consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a certificate- issuance-by-certificate issuance basis and in the aggregate), (vii) such Stockholder’s Loan Repayment Amount, if any, (viii) the Pro Rata Portion of such holderholder and the amounts deemed contributed by such holder into the Escrow Funds, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (vvii) and (ix) (on a certificate-by-certificate basis and in the aggregateviii), and (xi) whether such Stockholder is an Unaccredited Investor;
(dc) with respect to each Company Restricted StockOption: (i) the name name, and if available the address and e-mail address of the holder thereofsuch holder, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiaryits Subsidiaries, (iii) the grant date and expiration date thereof, (iv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder Company Option is a Continuing Employee, Non-Continuing Employee nonstatutory option or Departing Employee (it being understood that such information may be updated at any time prior to qualifies as an incentive stock option as defined in Section 422 of the Closing)Code, (viii) the number of shares of Parent Common Stock that will be subject to whether such Company Option or is “early exercisable” for shares of Company RSU following Restricted Stock, (ix) such holder’s Loan Repayment Amount, if any, (x) the Closing Pro Rata Portion of such holder and the amounts deemed contributed by such holder into the Escrow Funds, (xi) the net amounts to be paid to such holder in accordance with Section 1.6(c), if applicable, ) after deduction of the amounts referred to in clauses (ix) the exercise price per share of such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (x) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), if any;
(fd) with respect to each Company Warrant: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (iv) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration exercise price per share, (iv) the Pro Rata Portion of such holder and aggregate stock consideration comprising the BO Earn Out Amount.amounts deemed contributed by such holder into the Escrow Funds, (v) the net amounts to be paid to such holder in accordance with Section 1.6(d) after deduction of the amounts referred to in clause (iv), and (v) such other information which Parent or the Paying Agent may reasonably request;
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