Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC an allocation schedule (the “Allocation Schedule”) setting forth: (i) (A) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time; (ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date; (iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC New Common Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based); (iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and (v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and (vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant. (b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives. (c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 2 contracts
Sources: Business Combination Agreement (Banyan Acquisition Corp), Business Combination Agreement (Banyan Acquisition Corp)
Allocation Schedule. (a) At least No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC HighCape an allocation schedule (the “Allocation Schedule”) setting forth:
forth (ia) the number and class of shares of Company Stock held by each Company Stockholder, (Ab) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number shares of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares Stock subject to each Company Option and Company RSU held by each holder thereof, as well as whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective Time;
(ii) in the case of the Company Options Time and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratiothereof, (Bc) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC shares of HighCape Class A Common Stock, New HighCape Class B Common Shares) Stock and Rollover Awards to be allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option holder at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vid) Company Cash, (e) Company Indebtedness, (f) the Aggregate Exercise Price, (g) the number of Deemed Acquired Shares, (h) the number of Net Vested Options, (i) the Per Share Merger Consideration Value, (j) the Per Share Calculation Value and (k) a certification, duly executed by an authorized officer of the Company, that (i) the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iva) and (vb) of this Section 2.3(a) areis, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) respects and in accordance with the applicable provisions last sentence of this AgreementSection 2.3, (ii) the Governing Documents information delivered pursuant to clauses (c) through (j) is, and will be as of immediately prior to the Effective Time based on the good faith estimate of the Company based on its books and applicable Laws, records and (Ciii) in the case of the Company Optionshas performed, in accordance with the Company Equity Plan or the Company Charterotherwise complied with, as applicable, its covenants and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must agreements set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a2.4(b). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC HighCape or any of its Representatives and consider in good faith any reasonable comments proposed by HighCape or any of its Representatives.
(c) . Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (iiA) the aggregate number of the SPAC New HighCape Common Shares Stock that each Company Equityholder Stockholder will have a right to receive or pursuant to which his, her or its Company Options or Company Warrant (if anySection 2.1(b)(viii) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, share and (iiiB) in no event shall the aggregate number Allocation Schedule (or the calculations or determinations therein) breach, as applicable, any applicable Law, the Governing Documents of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of Company, the Company Stockholders Agreements, the Company Equity Plan or any other Contract to which the Company is a party or bound (ortaking into account, for the avoidance of doubt, any actions taken by the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.72.4(b), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 2 contracts
Sources: Business Combination Agreement (HighCape Capital Acquisition Corp.), Business Combination Agreement (HighCape Capital Acquisition Corp.)
Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to ACAH and the SPAC Exchange Agent an allocation schedule (the “Allocation Schedule”) setting forth, as of the date thereof:
(i) (A) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given giving effect to the Company Note Conversion, the Company Warrant Conversion and the Company Preferred Conversion), (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration exercise (or similar) date;
(iii) (A) the Exchange Ratio, ; (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC ACAH New Common Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC ACAH New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), (C) the portion of the Aggregate Share Consideration allocated to the SVB Warrant, to the extent not exercised prior to the Effective Time, and (D) the portion of the Aggregate Share Consideration allocated to each Company Option pursuant to Section 2.2(a), as well as, in the case of each of clauses (A) through (CD), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and;
(v) the exercise price of each Substituted Exchanged Option at the Effective Time, which shall be determined based on the same exchange (or similar) ratio used for purposes of determining the number of Exchanged Options for which such Company Option is exchanged in accordance clause (iii) of this Section 2.6(a);
(vi) with respect to each Company Equityholder (after giving effect to the Company Note Conversion, the Company Warrant Conversion and the Company Preferred Conversion), the aggregate number of ACAH New Common Shares issuable to such Company Equityholder based on allocations with respect to each class and type of Company Security held by such Company Equityholder, as set forth in Section 2.4(a2.6(a)(iii);
(vii) the Forfeiture Ratio for each Company Equityholder;
(viii) the estimated number of Earnout Shares and Earnout RSUs issuable to each Earnout Pre-Closing Company Securityholder (after giving effect to the Company Note Conversion, the Company Warrant Conversion and the Company Preferred Conversion) upon the occurrence of a Triggering Event; and
(viix) a certification, duly executed by an authorized the chief executive officer of the Company, that the information and calculations delivered pursuant to clauses (i), ) through (ii), (iii), (iv) and (vviii) of this Section 2.3(a2.6(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Stockholders Agreements and applicable Laws, (C) in the case of the Company OptionsOptions and the Company Restricted Shares, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and award of Company Restricted Share, and (D) in the case of the Company WarrantsSVB Warrant, to the extent not exercised prior to the Effective Time, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a)its terms. The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC ACAH or any of its RepresentativesRepresentatives and consider in good faith and incorporate any reasonable comments proposed by ACAH or any of its Representatives at least two (2) Business Days prior to the Effective Time.
(cb) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC ACAH Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC ACAH and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to the Aggregate Transaction Share Consideration), and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Aggregate Transaction Share Consideration), or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company and the Company Equityholders hereby irrevocably waives waive and releases the SPAC release ACAH and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Atlantic Coastal Acquisition Corp.)
Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC Atlas an allocation schedule (the “Allocation Schedule”) setting forth:
(i) (A) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion)Stockholder, (B) the number of Company Common Shares subject to each Company Warrant and SVB Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective TimeTime (for clarity, after having given effect to the Company Preferred Conversion);
(ii) in the case of the Company Options Options, Company Warrants and Company SVB Warrants, the exercise (or similar) price and, if applicable, the expiration exercise (or similar) date;
(iii) (A) the Exchange Ratio, ; (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Adjusted Transaction Share Consideration (specifying the number of the SPAC Atlas New Common Class B Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC Atlas New Common Class B Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), (C) (x) the portion of the Adjusted Transaction Share Consideration allocated to each Company Warrant pursuant to Section 2.4(c), and (y) the treatment of the SVB Warrants in the Merger, and (D) the portion of the Adjusted Transaction Share Consideration allocated to each Company Option pursuant to Section 2.4(a), including a breakdown of Vested Company Options and Unvested Company Options, as well as, in the case of each of clauses (A) through (CD), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and;
(v) the exercise price of each Substituted Exchanged Option at the Effective Time, which shall be determined based on the same exchange (or similar) ratio used for purposes of determining the number of Exchanged Options for which such Company Option is exchanged in accordance with clause (iii) of this Section 2.4(a2.3(a); and
(vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Stockholders Agreements and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants and SVB Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant and SVB Warrant, respectively.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and and, without limiting any other covenants, agreements, representations or warranties of the Company under this AgreementAgreement or any Ancillary Document or any Company Equityholder under any Ancillary Document or the rights or remedies of an Atlas Party or the Atlas Sponsor with respect thereto, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC Atlas pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC Atlas or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by Atlas or any of its Representatives.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC Atlas New Common Class B Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, (iiiii) in no event shall the aggregate number of the SPAC Atlas New Common Class B Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any)Options, exceed (A) the Aggregate Adjusted Transaction Share Consideration, minus (B) the SPAC Atlas New Common Class B Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC Atlas New Common Class B Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.72.6), (iviii) the SPAC Atlas Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (viv) upon delivery, payment and issuance of the Aggregate Adjusted Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC Atlas and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to the Aggregate Adjusted Transaction Share Consideration), and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Aggregate Adjusted Transaction Share Consideration), or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company and the Company Equityholders hereby irrevocably waives waive and releases the SPAC release Atlas and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Adjusted Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Atlas Crest Investment Corp.)
Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC an allocation schedule (the “Allocation Schedule”) setting forth:
(i) (A) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and Ratio, (C) the portion of the Aggregate Transaction Share Consideration (other than the Earnout Shares, EBITDA Earnout Shares and Additional Consideration) (specifying the number of the SPAC New Common Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), (D) the portion of the Earnout Shares allocated to each Eligible Company Equityholder pursuant to Section 2.10, (E) the portion of the EBITDA Earnout Shares allocated to each Eligible Company Equityholder pursuant to Section 2.11, and (F) the portion of the Additional Consideration allocated to each Eligible Company Equityholder pursuant to Section 2.12 as well as, in the case of each of clauses (A) through (CF), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion Conversions and the Closing occurred as of the date of this Agreement Execution Date and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement Execution Date and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Banyan Acquisition Corp)
Allocation Schedule. (a) At least three The Company has prepared and delivered to Parent an “Allocation Schedule,” prepared by the Company (3) Business Days prior to the Closing DateClosing) in accordance with the Charter Documents of the Company, the Company shall deliver to the SPAC an allocation schedule (the “Allocation Schedule”) which is accurate and complete in all respects setting forth:
: (i) the name and address (Aor email address) of each Holder; (ii) the number and class of shares of Company Common Shares Stock held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested Holder as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
; (iii) the priority of Stock Election Consideration proceeds to be distributed post-Closing amongst the Holders (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC New Common Shares) allocated to assuming each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting SharesHolder makes a Stock Election), as well asin each case, in the case of each of clauses (A) through (C), reasonably detailed calculations with respect to the components designated by Tranche and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined calculated in accordance with Section 2.4(a); and
(vi) a certification, duly executed by an authorized officer the Distribution Priorities and the terms of the Company, that the information ’s Charter Documents; and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement each Holder’s Percentage Interest with respect to each such Holder’s Shares of Company Option and (D) in the case of the Company WarrantsPreferred Stock, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrantif any.
(b) Section 2.3(b) The Company shall have provided a determination of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of whether Taxes are required to be withheld from any payments to each Holder under this Agreement and without limiting any other covenants(assuming submission of a Form W-9 or Form W-8, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(aas applicable). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives.
(c) Notwithstanding The Allocation Schedule may be revised by the foregoing or anything Holders’ Representative pursuant to the contrary hereinprovisions of Section 2.07 to reflect Holders who have elected the Stock Election.
(d) Parent, (i) all Company Common Shares held by any Company Stockholder shall be aggregatedMerger Sub, and the Exchange Ratio or Series I Exchange Ratio (Surviving Company will have the right to rely on the Final Allocation Schedule as applicable) shall setting forth a true, complete and accurate listing of all amounts due to be applied to that aggregate number of shares held paid by such Company StockholderParent, Merger Sub, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders)Holders as Merger Consideration, including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) aggregate amount of the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties Adjusted Cash Election Consideration and the Exchange Agent will be entitled to rely upon the Allocation Schedule Percentage Interest for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations each Holder with respect to the payment of the Aggregate Transaction Share Considerationeach Tranche. Parent, Merger Sub, and none of them shall the Surviving Company will not have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability liability with respect to the allocation of any cash paid to any Holder or any shares of Parent Common Stock distributed to (or liquidated on behalf of) any Holder in accordance with the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Final Allocation Schedule.
Appears in 1 contract
Sources: Merger Agreement (DarioHealth Corp.)
Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC ShoulderUp and Holdings an allocation schedule (the “Allocation Schedule”) setting forth:
forth (i) (A) the number of shares of Company Common Shares Stock held by each Company Stockholder stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) including the number of shares of Company Common Shares subject Stock immediately prior to each Company Warrant held by each holder thereofthe Closing), and (C) the number of shares of Company Common Shares Stock subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective Time;
, (ii) in the case of the Company Options and Company WarrantsOptions, the exercise (or similar) price and, if applicable, the expiration (or similar) exercise date;
, (iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Merger Consideration (specifying the number of the SPAC New Common Shares) allocated to each Company Common Share Option pursuant to Section 2.1(h3.8(a) or Section 2.1(j) (as applicable) based on and the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number portion of the SPAC New Common Shares that would be Aggregate Merger Consideration allocated to any such each share of Company Common Shares Stock pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares3.2(a), as well as, in the case of each of clauses (A) through (C)case, reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are basedthe Exchange Ratio);
, (iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Rollover Option (as defined below) at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
and (viv) a certification, duly executed by an authorized officer of the Company, that that, to his or her knowledge and solely in his or her capacity as an officer of the Company (and without any personal liability), the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(aiv) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, respects and (B) in accordance with the Allocation Schedule Principles (as defined below). The Allocation Schedule (and the calculations and determinations contained therein) will be prepared in accordance with the applicable provisions of this Agreement, the Governing Documents organizational documents of the Company Company, and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in collectively, the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative “Allocation Schedule (the “Illustrative Allocation SchedulePrinciples”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC ShoulderUp or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by ShoulderUp or any of its Representatives.
(c) . Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iiix) in no event shall the aggregate number of the SPAC New Common Shares Holdings shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company Common Stock, Company Options (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share ConsiderationMerger Consideration and (y) ShoulderUp, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreedHoldings, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties ShoulderUp Merger Sub and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreementagreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (ShoulderUP Technology Acquisition Corp.)
Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC Atlas an allocation schedule (the “Allocation Schedule”) setting forth:
(i) (A) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion)Stockholder, (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective TimeTime (for clarity, after having given effect to the Company Preferred Conversion);
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration exercise (or similar) date;
(iii) (A) the Exchange Ratio, ; (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Adjusted Transaction Share Consideration (specifying the number of the SPAC Atlas New Common Class B Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC Atlas New Common Class B Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), (C) the portion of the Adjusted Transaction Share Consideration allocated to each Company Warrant pursuant to Section 2.4(c), and (D) the portion of the Adjusted Transaction Share Consideration allocated to each Company Option pursuant to Section 2.4(a), including a breakdown of Vested Company Options and Unvested Company Options, as well as, in the case of each of clauses (A) through (CD), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and;
(v) the exercise price of each Substituted Exchanged Option at the Effective Time, which shall be determined based on the same exchange (or similar) ratio used for purposes of determining the number of Exchanged Options for which such Company Option is exchanged in accordance with clause (iii) of this Section 2.4(a2.3(a); and
(vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Stockholders Agreements and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and and, without limiting any other covenants, agreements, representations or warranties of the Company under this AgreementAgreement or any Ancillary Document or any Company Equityholder under any Ancillary Document or the rights or remedies of an Atlas Party or the Atlas Sponsor with respect thereto, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC Atlas pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC Atlas or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by Atlas or any of its Representatives.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC Atlas New Common Class B Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, (iiiii) in no event shall the aggregate number of the SPAC Atlas New Common Class B Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any)Options, exceed (A) the Aggregate Adjusted Transaction Share Consideration, minus (B) the SPAC Atlas New Common Class B Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC Atlas New Common Class B Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.72.6), (iviii) the SPAC Atlas Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (viv) upon delivery, payment and issuance of the Aggregate Adjusted Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC Atlas and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to the Aggregate Adjusted Transaction Share Consideration), and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Aggregate Adjusted Transaction Share Consideration), or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company and the Company Equityholders hereby irrevocably waives waive and releases the SPAC release Atlas and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Adjusted Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Atlas Crest Investment Corp.)
Allocation Schedule. (a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC an allocation schedule (the “Allocation Schedule”) setting forth:
(i) (A) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and Ratio, (C) the portion of the Aggregate Transaction Share Consideration (other than the Earnout Shares) (specifying the number of the SPAC New Common Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), and (D) the portion of the Earnout Shares allocated to each Eligible Company Equityholder pursuant to Section 2.10, as well as, in the case of each of clauses (A) through (CD), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion Conversions and the Closing occurred as of the date of this Agreement Execution Date and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement Execution Date and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Banyan Acquisition Corp)
Allocation Schedule. (a) At least three ten (310) Business Days prior to the Closing Date, the Company shall deliver to the SPAC Plum an allocation schedule (the “Allocation Schedule”) setting forthforth as of the Effective Time:
(i) the number of shares of Company Common Stock held by each Company Shareholder (Aincluding Company Common Stock resulting from the conversion of Equity Securities of the Company (other than Company Common Stock) after giving effect to such conversions);
(ii) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number shares of Company Common Shares Stock subject to each Company Warrant Options held by each holder thereof, the Company Optionholders and (C) the number of Company Common Shares subject to each Company Option Warrants held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of Warrantholders and immediately prior to the Effective Time;
(ii) in , the case exercise price of the each such Company Options and Company Warrants, and vesting arrangements with respect to each such Company Options and Company Warrants (including the exercise (or similar) price andvesting schedule, if applicablevesting status, and the expiration (or similar) vesting commencement date);
(iii) the Existing Fully Diluted Company Capitalization;
(iv) the New Financing Securities;
(A) the Existing Holder Exchange Ratio, (B) the Series I New Company Shareholder Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC New Plum Common Shares) allocated to each share of Company Common Share Stock pursuant to Section 2.1(h) or Section 2.1(j) 2.01 (as applicableafter giving effect to the conversion of Equity Securities of the Company (other than Company Common Stock)) based on the Existing Holder Exchange Ratio or Series I New Company Shareholder Exchange Ratio, as applicable (includingapplicable, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C), including reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(ivvi) for each Existing Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting SharesShareholder, its Pro Rata Share; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vivii) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a3.03(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, respects and (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Plum Common Shares that each Company Equityholder Securityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, (iiiii) in no event shall the aggregate number of the SPAC New Plum Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if anySecurityholder), exceed (A) the Aggregate Transaction Share Consideration, minus (Biii) Plum, the SPAC New Common Shares that would be allocated to Surviving Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration Transaction Consideration to the Company Equityholders Securityholder under this Agreement or under the Exchange Agent Agreement, as applicable, and (viv) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC Plum and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to the Aggregate Transaction Share Consideration), and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Aggregate Transaction Share Consideration), or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company and the Company Securityholder hereby irrevocably waives waive and releases the SPAC release Plum and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder Securityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. I)
Allocation Schedule. (a) At least three five (35) Business Days prior to the Closing DateClosing, the Company shall deliver to the SPAC Pathfinder an allocation schedule (the “Allocation Schedule”) setting forth:
forth (a) (i) (A) the number and type of Company Common Shares held by each Company Stockholder Shareholder (for clarity, before and after having given giving effect to the Company Preferred ConversionPre-Closing Recapitalization), (Bii) the number and type of Company Common Shares subject to each Company Warrant held by each holder thereof, thereof and (C) the number of Company Shares that will be held by each such holder after giving effect to the exercise of Company Warrants (or, in the case of the SVB Warrants, if applicable, any Company Common Shares subject to such SVB Warrants) pursuant to Section 1.4(c) (the “Company Warrant Exercise”), (iii) the number and type of Company Shares subject to each Company Option held by each holder thereofthereof that is outstanding, (iv) the number and type of Company Shares that will be held by each holder of Company Convertible Notes after giving effect to the conversion of Company Convertible Notes pursuant to Section 1.4(d) (the “Company Convertible Note Conversion”), as well as as, in each case, reasonably detailed calculations with respect to the components and subcomponents thereof (including any conversion, exchange (or similar) ratio on which such calculations are based) and (v) whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective Time;
, (iib) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration exercise (or similar) date;
, (iiic) (Ai) the Exchange RatioAdjusted Pre-Closing Equity Value, the Aggregate Company Vested Option Exercise Price, and the Transaction Share Consideration, (B) the Series I Exchange Ratio and (Cii) the portion of the Aggregate Transaction Share Consideration allocated to each Vested Company Option pursuant to Section 1.4(a), (specifying ii) the number of Pathfinder Shares to which each Rollover Unvested Option will be subject at the SPAC New Common SharesEffective Time, and (iii) the portion of the Transaction Share Consideration allocated to each Company Common Share pursuant to Section 2.1(h1.1(b)(vii) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, each Company Share that is issued in connection with the number of Pre-Closing Recapitalization and each Company Share subject to the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting SharesSVB Warrants), as well as, in the case of each of clauses (A) through (C)case, reasonably detailed calculations with respect to the components and subcomponents thereof (including any conversion, exchange (or similar) ratio on which such calculations are basedbased (including, for the avoidance of doubt, relating to the Pre-Closing Recapitalization);
), (iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(vd) the exercise price of each Substituted Rollover Option at the Effective Time, which shall be determined based on the same exchange (or similar) ratio used for purposes of determining the number of Rollover Options for which such Company Option is exchanged in accordance with Section 2.4(athe preceding clause (c); and
, (vie) a list of each Company Shareholder that is a Dissenting Company Shareholder and the number of Company Shares held by such Company Shareholder that are Dissenting Company Shares, and (f) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), a) through (ii), (iii), (iv) and (v) of this Section 2.3(ae) are, and will be be, as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) respects and in accordance with the Allocation Schedule Requirements. The Allocation Schedule (and the calculations and determinations contained therein) will be prepared in accordance with (i) the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Shareholder Agreements and applicable Laws, (Cii) in the case of the Company Options, in accordance with the applicable Company Equity Plan or the Company Charter, as applicable, and any applicable grant grant, award or similar agreement with respect to each such Company Option Option, (iii) in the case of any Company Warrants, any applicable warrant or similar agreement with respect to each such Company Warrant and (Div) in the case of the Company WarrantsConvertible Notes, in accordance with each such Company Convertible Note, (clauses (i) through (iv), collectively, the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative “Allocation Schedule (the “Illustrative Allocation ScheduleRequirements”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by Pathfinder or any of its Representatives and consider in good faith the SPAC comments provided by Pathfinder or any of its Representatives and incorporate any reasonable comments proposed by Pathfinder or any of its Representatives.
(c) . Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Pathfinder Shares set forth on the Allocation Schedule that are to be received or otherwise allocated to the holders of Equity Securities of the Company (and/or to be received or otherwise allocated in respect of the equity securities any other vested Equity Securities of the Company (orprior to the Closing including, for the avoidance of doubt, in respect of the Company Equityholders)SVB Warrants, including the vested (but whether or not unvestedexercised) Company Options and Company Warrants (if any), exceed (A1) the Aggregate Transaction Share Consideration, Consideration minus (B2) the SPAC New Common Shares portion of the Transaction Share Consideration that would be allocated to Company Common Shares pursuant to Section 2.1(h1.1(b)(vii) but for such Company Common Shares being Dissenting Company Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares portion of the Transaction Share Consideration described in this clause (B2) be allocated to any other holder of Equity Securities of the Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.71.7) (i.e., the aggregate value of the Pathfinder Shares received by holders of any vested Equity Securities in the Company (including, for the avoidance of doubt, in respect of the SVB Warrants, whether or not exercised) shall not exceed (A) the Company Pre-Closing Equity Value (based on the Pathfinder Common Share Value), minus (ivB) the SPAC value of any Pathfinder Shares that would be allocated to Company Shares pursuant to Section 1.1(b)(vii) but for such Company Shares being Dissenting Company Shares (based on the Pathfinder Common Share Value)). For the avoidance of doubt, the Unvested Company Options shall not be included as part of the Transaction Share Consideration and shall, as provided in Section 1.4(b), be converted into Rollover Unvested Options and constitute awards issued under the Post-Closing Incentive Equity Plan. The Pathfinder Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the holders of Equity Securities of the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Pathfinder Acquisition Corp)
Allocation Schedule. (a) At least No later than three (3) Business Days prior to the Closing Date, the each Company Party shall deliver to the SPAC Parent an allocation schedule (the “Allocation Schedule”) setting forth:
forth (ia) the number and class of shares of Company Parties Stock held by each Company Parties Stockholder, (Ab) the number of Company Common Shares held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), (B) the number shares of Company Common Shares Parties Stock subject to each Company Warrant held by each holder thereof, Party Option and (C) the number of Company Common Shares subject to each Company Option Party RSU held by each holder thereof, as well as whether each such Company Party Option will be vested a Vested Company Party Option or unvested an Unvested Company Party Option as of immediately prior to the Effective Time;
(ii) in the case of the Company Options Time and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratiothereof, (Bc) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC Parent Class A Common Stock, New Parent Class B Common Shares) Stock and Rollover Awards to be allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option holder at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
Time and (vid) a certification, duly executed by an authorized officer of the Companyeach Company Party, that (i) the information and calculations delivered pursuant to clauses (ia), (iib), (iii), (iv) and (vc) of this Section 2.3(a) areis, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) respects and in accordance with the applicable provisions last sentence of this Agreement, the Governing Documents of Section 2.3 and (ii) the Company and applicable LawsParties have performed, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charterotherwise complied with, as applicable, its covenants and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must agreements set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a2.5(b). The Company Parties will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC Parent or any of its Representatives and consider in good faith any reasonable comments proposed by Parent or any of its Representatives.
(c) . Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (iiA) the aggregate number of the SPAC New shares of Parent Common Shares Stock that each Company Equityholder Parties Stockholder will have a right to receive or pursuant to which his, her or its Company Options or Company Warrant (if anySection 2.1(b)(ix) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, share and (iiiB) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect (or the calculations or determinations therein) breach, as applicable, any applicable Law, the Governing Documents of the equity securities of each Company Party, the Company Parties Stockholders Agreements, the Company Parties Equity Plans or any other Contract to which a Company Party is a party or bound (ortaking into account, for the avoidance of doubt, any actions taken by the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares Parties pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.72.5(b), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule).
Appears in 1 contract
Sources: Business Combination Agreement (HealthCor Catalio Acquisition Corp.)
Allocation Schedule. (a) At least three two (32) Business Days prior to the Closing Date, the Company shall deliver to the SPAC ENVI an allocation schedule (the “Allocation Schedule”) setting forth:
, as of three (3) Business Days prior to the Closing Date, (i) (A) the number of Company Common Shares held by each Company Stockholder (Shareholder and, for clarityeach class so held, after having given effect to the Company Preferred Conversion)applicable Conversion Ratio thereof, (B) the number of Company Common Shares subject to each Company Warrant held by each holder thereof, and (Cii) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective Time;
, (iiiii) the number of Company Shares subject to the Assumed Warrants, (iv) in the case of the Company Options and Company or Assumed Warrants, the exercise (or similar) price and, if applicable, thereof as of immediately prior to the expiration (or similar) date;
(iii) (A) the Exchange RatioEffective Time, (B) the Series I Exchange Ratio and (Cv) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC New Common Shares) allocated to each Company Common Option pursuant to Section 2.4(b) and the portion of the Transaction Share Consideration allocated to each Company Share pursuant to Section 2.1(h) or Section 2.1(j2.1(g) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C)case, reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder the Exchange Ratio and the number Conversion Ratios (by class of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) capital stock of the exercise price of each Substituted Option at the Effective TimeCompany))), which shall be determined in accordance with Section 2.4(a); and
and (vi) a certification, duly executed by an authorized officer of the Company, that that, to their knowledge and solely in their capacity as an officer of the Company (and without any personal liability), the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(aiv) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, respects and (B) in accordance with the Allocation Schedule Principles. The Allocation Schedule (and the calculations and determinations contained therein) will be prepared in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Shareholders Agreement and applicable LawsLaws and, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) Option, and, in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) terms and conditions of the respective Company Disclosure Schedules contains an illustrative Warrants (collectively, the “Allocation Schedule (the “Illustrative Allocation SchedulePrinciples”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC ENVI or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by ENVI or any of its Representatives.
(c) . Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iiix) in no event shall the aggregate number of the SPAC New Common ENVI Class A Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including ) exceed the vested Transaction Share Consideration and (but not unvested) Company Options and Company Warrants (if any), exceed (Ay) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC ENVI Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Environmental Impact Acquisition Corp)
Allocation Schedule. (a) At least three Prior to the date hereof, the Company has delivered to Acquiror a spreadsheet, for informational purposes only, setting forth the Company’s good faith projected pro-forma capitalization of the Company after giving effect to the Pre-Closing Restructuring (3assuming that the Pre-Closing Restructuring is consummated as of the date of this Agreement), setting forth (i) the number and class or series (as applicable) of all equity securities of the Company issued and outstanding, (ii) the identity of the Persons that are the record and beneficial owners thereof, and (iii) with respect to each Company Award, as applicable, (A) the holder thereof, (B) the type of Company Award (including whether the Company Award is intended to qualify as an incentive stock option), (C) the date of grant and expiration date thereof, (D) the number of vested and unvested shares of Company Common Stock subject thereto, (E) the vesting schedule (including any accelerated vesting provisions), and (F) the exercise price thereof. Acquiror and Merger Sub agree that the Company Parties shall have not any Liability to Acquiror related to such spreadsheet and that the Company Parties are making no representations or warranties with respect to such spreadsheet.
(b) No later than five (5) Business Days prior to the Closing Date, the Company Parties shall deliver to the SPAC Acquiror an allocation schedule (the “Allocation Schedule”) setting forth:
, after giving effect to the Pre-Closing Restructuring, (i) (Aa) the number of shares of Company Common Shares Stock held by each Company Stockholder (for claritystockholder, after having given effect to the Company Preferred Conversion), (B) the number of shares of Company Common Shares Stock subject to each Company Warrant Award held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC New Common Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the exercise price thereof, (b) the portion of the Aggregate Merger Consideration allocated to each holder of Company Equity Plan or the Company Charter, as applicableCommon Stock pursuant to Section 3.1(b), and any applicable grant or similar agreement (c) on a holder-by-holder basis and award-by-award basis, (i) each Acquiror Option that will be outstanding as of the Closing, and, with respect to each Company such Acquiror Option, the number of shares of Acquiror Class A Common Stock issuable upon exercise of such Acquiror Option and the exercise price of such Acquiror Option, and (Dii) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred Adjusted Restricted Stock Award that will be outstanding as of the date Closing and the number of this Agreement and without limiting any other covenantsshares of Acquiror Class A Common Stock subject to such Adjusted Restricted Stock Award, agreementsin each case, representations or warranties including a reasonably detailed itemization of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a)components thereof. The Company Parties will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or Acquiror and consider in good faith and incorporate any of its Representativesreasonable comments proposed by Acquiror to correct inaccuracies.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Allocation Schedule. (a) At least three five (35) Business Days prior to the Closing DateClosing, the Company Companies shall deliver to Parent and the SPAC Exchange Agent an allocation schedule (the “Allocation Schedule”) setting forth, as of the date thereof:
(i) (A) the number of Company Common Shares LMA Interests held by each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion), LMA Member and (B) the number of Company Common Shares subject to each Company Warrant Abacus Interests held by each holder thereof, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective TimeAbacus Member;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Transaction Share Stock Consideration (specifying the number of the SPAC New shares of Parent Common SharesStock) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) Member based on the Exchange Ratio or Series I Exchange Ratio, as applicable this Article II (including, for the avoidance of doubt, the number of the SPAC New shares of Parent Common Shares Stock that would be allocated to any such Company Common Shares pursuant each LMA Member and Abacus Member, as applicable, assuming the Available Cash Amount is zero);
(iii) subject to Section 2.1(h) but for such Company Common Shares being Dissenting Shares2.2(b), as well asthe pro rata portion of any Cash Consideration to be allocated to each Company Member making a Cash Election, in the case of each of clauses if any;
(Aiv) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof of the foregoing clauses (i) through (iv) (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vi) a certificationcertificate, duly executed by an authorized the chief executive officer (or equivalent) of the each Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, respects and (B) in accordance with the applicable provisions of this Agreement, the Governing Organizational Documents of the each Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company Companies will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives.
(c) Notwithstanding the foregoing or anything Parent and consider in good faith and incorporate all reasonable comments proposed by Parent and acceptable to the contrary herein, Companies at least two (i2) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded Business Days prior to the nearest whole share, (iii) in no event shall Effective Time. Notwithstanding anything herein to the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubtcontrary, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parent Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration respective portions of the Aggregate Merger Consideration to the Company Equityholders Members under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Merger Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates Parent Parties shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share ConsiderationMerger Consideration under this Agreement, and none of them shall have (A) any further obligations to the either Company, any the Company Equityholder Members or any other Person with respect to the payment of the Aggregate Transaction Share Considerationany consideration under this Agreement, or (B) any Liability liability with respect to the allocation of the consideration under this Agreement, and the each Company and each Company Member hereby irrevocably waives and releases the SPAC and its Affiliates Parent Parties (and, on and after the Closing, the Company and its AffiliatesSurviving Companies) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as Merger Consideration among the case may be, among each Company Equityholder Members as set forth in such the Allocation Schedule.
Appears in 1 contract
Allocation Schedule. (a) At least No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to the SPAC TortoiseCorp III an allocation schedule (the “Allocation Schedule”) setting forth:
forth (i) (Aa) the number of Company Common Shares and Company Preferred Shares held by each Company Stockholder Shareholder (for clarity, after having given giving effect to the Company Preferred ConversionExchanges), (Bb) the number calculation of Company the Equity Value, the Per Share Price, the Aggregate Common Shares subject to each Company Warrant held by each holder thereofShare Consideration, the Aggregate Preferred Share Consideration, and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate resulting Transaction Share Consideration (specifying the number of the SPAC New Common Shares) allocated to each Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (includingwhich shall, for the avoidance of doubt, be reduced by the aggregate portion of the Transaction Share Consideration that would be attributable to the Dissenting Shares if such Company Shares were not Dissenting Shares) (c) the portion of the Transaction Share Consideration allocated to each Company Shareholder (other than Dissenting Shareholders), with each Company Shareholder receiving for each Company Common Share (treating Company Preferred Stock Shares on an as-converted to Company Common Share basis, but excluding any Company Securities held as treasury stock), a number of Pubco Common Shares equal to (i) the Per Share Price, divided by (ii) the Pubco Common Share Value (the “Conversion Ratio”), (d) the number of the SPAC New Pubco Common Shares that would which each Company Shareholder will be allocated entitled to any such receive as Company Common Earnout Shares pursuant to Section 2.1(h) but (as may be adjusted for such Company Common Shares being Dissenting Sharesshare subdivisions, share capitalizations, reorganizations, recapitalizations and the like), as well as, in (e) the case number of each of clauses Assumed Options (A) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Pubco Common Shares held by underlying such Assumed Options) which each holder of Company Stockholder that are Dissenting Shares; and
Options will be entitled to receive, (v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vif) a certification, duly executed by an authorized officer of the Company, that (i) the information and calculations delivered pursuant to clauses (ia), (iib), (iiic), (ivd) and (v) of this Section 2.3(a) aree), is, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) respects and in accordance with the applicable provisions last sentence of this Agreement, the Governing Documents of Section 2.3 and (ii) the Company and applicable Lawshas performed, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charterotherwise complied with, as applicable, its covenants and any applicable grant or similar agreement with respect to each Company Option agreements set forth in Section 5.13(d), and (Df) reasonable supporting documentation in the case support of the Company Warrantscalculation of the amounts set forth in clauses (a), in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b), (c),(d) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule and (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(ae). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC TortoiseCorp III or any of its Representatives.
(c) , make any changes proposed by TortoiseCorp III or its Representatives that are correcting mathematical or other manifest error and otherwise consider in good faith any reasonable comments proposed by TortoiseCorp III or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (iiA) the aggregate number of the SPAC New Common Pubco Shares that each Company Equityholder Shareholder will have a right to receive or pursuant to which his, her or its Company Options or Company Warrant (if anySection 2.1(f)(vii) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, (iiiB) in no event shall the aggregate number of the SPAC New Pubco Common Shares set forth on the Allocation Schedule that are allocated in respect of Company Common Shares exceed the equity securities Aggregate Common Share Consideration, (C) in no event shall the aggregate number of Pubco Preferred Shares set forth on the Allocation Schedule that are allocated in respect of Company Preferred Shares exceed the Aggregate Preferred Share Consideration and (D) in no event shall the Allocation Schedule (or the calculations or determinations therein) breach, as applicable, any applicable Law, the Governing Documents of the Company, the Company Shareholders Agreement or any other Contract to which the Company is a party or bound (ortaking into account, for the avoidance of doubt, any actions taken by the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.75.13(d), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule).
Appears in 1 contract
Sources: Business Combination Agreement (TortoiseEcofin Acquisition Corp. III)
Allocation Schedule. (a) At least three thirty (330) Business Days prior to the Closing Date, the Company shall deliver to the SPAC an Plum a draft allocation schedule (the “Draft Allocation Schedule”) setting forthforth as of the First Effective Time:
(i) (A) the number of shares of Company Capital Stock held by the Company Shareholders (including Company Common Shares held by each Company Stockholder (for clarity, after having given effect to Stock resulting from the conversion of the Company Preferred Conversion), Stock and other convertible Equity Securities of the Company (B) the number of other than Company Common Shares subject Stock) after giving effect to each Company Warrant held by each holder thereof, and (Csuch conversions) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the First Effective Time;
(ii) in the case number of shares of Company Common Stock subject to Company Warrants held by the Company Options Warrantholders immediately prior to the First Effective Time, and the aggregate exercise price applicable to such Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) the number of shares of Company Common Stock subject to Company Options held by the Company Optionholders immediately prior to the First Effective Time, the exercise price of each such Company Options, and vesting arrangements with respect to each such Company Option (including the vesting schedule, vesting status and the vesting commencement date);
(iv) the number of shares of Company Common Stock subject to Company Convertible Notes held by the Company Convertible Noteholders immediately prior to the First Effective Time;
(v) the Aggregate Exercise Price;
(vi) the Fully Diluted Company Capitalization;
(vii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (CB) the portion of the Aggregate Transaction Share Consideration (specifying the number of the SPAC New Plum Common Shares) allocated to each share of Company Common Share Stock pursuant to Section 2.1(h) or Section 2.1(j2.01(a) (as applicableafter giving effect to the conversion of the Company Preferred Stock and Equity Securities of the Company (other than Company Capital Stock into Company Common Stock)) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number of the SPAC New Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares), as well as, in the case of each of clauses (A) through (C), including reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(ivviii) for each Company Stockholder that is a Dissenting Stockholder and Securityholder, its Pro Rata Share;
(ix) for each Converted Stock Option, the exercise price therefore, the number of Company New Plum Common Shares held by subject to such Company Stockholder that are Dissenting SharesConverted Stock Option and the extent to which such Converted Stock Option is vested or unvested; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vix) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), ) through (ii), (iii), (iv) and (vviii) of this Section 2.3(a3.03(a) are, and will be and, as of immediately prior to the First Effective Time, will be (A) true and correct in all respects, respects and (B) prepared in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Shareholder Agreements, and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any reasonable comments to the Draft Allocation Schedule provided by the SPAC Plum or any of its RepresentativesRepresentatives that are consistent with this Agreement and, based on the Company’s good faith assessment, are warranted or appropriate, incorporate any reasonable comments proposed by Plum or any of its Representatives and, not less than five (5) Business Days prior to the Closing Date, the Company shall deliver to Plum the final allocation schedule (the “Allocation Schedule”) setting forth as of the First Effective Time the information and calculations required pursuant to clauses (i) through (viii) of this Section 3.03(a).
(cb) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Plum Common Shares that each Company Equityholder Securityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, (iiiii) in no event shall the aggregate number of the SPAC New Plum Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if anySecurityholders), exceed (A) the Aggregate Transaction Share Consideration, minus (Biii) Plum, the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties Surviving Entity and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration Transaction Consideration to the Company Equityholders Securityholder under this Agreement or under the Exchange Agent Agreement, as applicable, and (viv) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC Plum and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to the Aggregate Transaction Share Consideration), and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Aggregate Transaction Share Consideration), or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company and the Company Securityholder hereby irrevocably waives waive and releases the SPAC release Plum and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder Securityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. I)
Allocation Schedule. (a) At least three seven (37) Business Days prior to the Closing Date, the Company shall deliver to the SPAC Buyer an allocation schedule (the “Allocation Schedule”) setting forth:
(i) the name, mailing addresses, telephone numbers, email addresses and status as a U.S. Person or as other than a U.S. Person for each Company Equityholder;
(ii) (A) the number of Company Preferred Shares held by each Company Stockholder, (B) the number of Company Common Shares held by each Company Stockholder Stockholder, (for clarity, after having given effect to C) the number of Company Common Shares underlying the Company Preferred Conversion)Warrants, (BD) the number of Company Common Shares subject to each Company Warrant RSU held by each holder thereofthereof as determined under Section 1.5(c), and (CE) the number of Company Common Shares subject to each Company Option PSU held by each holder thereof, thereof as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Warrants, the exercise (or similar) price and, if applicable, the expiration (or similar) datedetermined under Section 1.5(d);
(iii) The Pro Rata Share of each Company Stockholder, Company Warrant Holder and each Indemnifying Party;
(Aiv) The total number of Fully-Diluted Company Common Shares;
(v) the Exchange Ratio, Preferred Liquidation Preference;
(Bvi) the Series I Exchange Ratio and Capital Contribution;
(Cvii) the portion of the Aggregate Transaction Change of Control Payments allocated to each applicable recipient;
(viii) (A) the Per Preferred Share Closing Consideration; (B) the portion of the Preferred Estimated Closing Consideration (specifying the number of the SPAC New Common Sharescash amount) allocated to each Company Common Share Stockholder pursuant to Section 2.1(h1.5(a) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance in respect of doubt, the number of the SPAC New Common Company Preferred Shares that would be allocated to any held by such Company Stockholder; (C) the Per Common Shares Share Closing Consideration; (D) the Common Estimated Closing Consideration (specifying the cash amount) payable to each Company Stockholder and Company Warrant Holder pursuant to Section 2.1(h1.5(b); (E) but for such the RSU Closing Consideration (specifying the cash amount) payable to each holder thereof pursuant to Section 1.5(c); (F) the PSU Closing Consideration (specifying the cash amount) payable to each holder thereof pursuant to Section 1.5(d); and (G) the total amount of Taxes to be withheld from each Company Common Shares being Dissenting SharesEquityholder in the case of each of clauses (A) through (F), as well as, in the case of each of clauses (A) through (CG), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(ivix) each Company Stockholder that is a Dissenting Stockholder the Disbursing Agent Designated Account;
(x) All formulas and calculations related to the payment of the Purchase Price and the number of Company Common Shares held by such Company Stockholder that are Dissenting Sharescomponents and subcomponents thereof; and
(v) the exercise price of each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vixi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (vx) of this Section 2.3(a2.2(a) are, and will be as of immediately prior to the Effective TimeClosing, (A) true and correct in all respects, (B) in accordance with (both in respect of the allocation of the Estimated Closing Purchase Price and the distribution of any portion of the Purchase Price Adjustment Holdback Amount or the Indemnity Holdback Amount in accordance with this Agreement) the applicable provisions of this Agreement, the Governing Organizational Documents of the Company, the Company Stockholders Agreement and applicable Laws, and (C) in the case of the Company OptionsRSUs and Company PSUs, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option RSU and (D) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company WarrantPSU.
(b) Section 2.3(b2.2(b) of the Company Disclosure Schedules Schedule contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and and, without limiting any other covenants, agreements, representations or warranties of the Company, the Company Stockholders, and the Company Warrant Holders under this AgreementAgreement or the rights or remedies of Buyer with respect thereto, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC Buyer pursuant to Section 2.3(a2.2(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC Buyer or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by Buyer or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, the information required to be provided in the Illustrative Allocation Schedule under Section 2.2(a)(vii), (i) other than the allocation contemplated by clause (ii) hereof, shall be provided by the Company within five (5) Business Days as of the date of this Agreement and (ii) with respect to the allocation among recipients of a portion of the Change of Control Payments in an approximate aggregate amount of one million, two hundred thirty-three thousand, three hundred forty-seven ($1,233,347) shall be provided by the Company within thirty (30) calendar days of the date of this Agreement.
(c) If the Estimated Closing Statement is updated after the initial delivery of the Estimated Closing Statement pursuant to Section 2.1 then concurrently with the delivery of such updated Estimated Closing Statement by the Company to Buyer, the Company shall deliver an updated Allocation Schedule to Buyer which takes into account the changes set forth in the updated Estimated Closing Statement. Prior to any payment to the Company Equityholders pursuant to this Agreement following the Closing, the Company Equityholders’ Representative shall deliver an updated Allocation Schedule providing for the allocation of such payment. Nothing set forth in any Allocation Schedule, including any updated Allocation Schedule delivered pursuant to this Agreement, shall increase the aggregate amount of the Estimated Closing Purchase Price, the Closing Purchase Price or the Purchase Price from that contemplated by the definitions of such terms.
(d) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, Buyer and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent affiliates will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (vii) upon delivery, delivery and payment and issuance of the Aggregate Transaction Share Consideration on Purchase Price, allocated in accordance with the Closing Date to the Exchange AgentAllocation Schedule and in accordance with this Agreement, the SPAC Buyer and its respective Affiliates affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Considerationconsideration under this Agreement, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Considerationany consideration under this Agreement, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company, the Company Stockholders, Company Warrant Holders and the Company Equityholders’ Representative hereby irrevocably waives waive and releases the SPAC release Buyer and its Affiliates affiliates (and, on and after the Closing, the Company and its Affiliatesaffiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share ConsiderationPurchase Price, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Securities Purchase Agreement (Masonite International Corp)
Allocation Schedule. The Company acknowledges and agrees that (ai) At least three (3) Business Days prior the Total Merger Consideration is being allocated among the Pre-Closing Holders pursuant to the schedule to be delivered to PTAC in connection with the Closing Date, the Company shall deliver Statement pursuant to the SPAC an allocation schedule Section 2.3(e) (the “Allocation Schedule”) setting forth:
and such allocation (i) is and will be in accordance with the Governing Documents of the Company, the Company Shareholder Agreements and applicable Law, (ii) does and will set forth (A) the number of Company Common Shares held by mailing addresses, telephone numbers and email addresses, for each Company Stockholder (for clarity, after having given effect to the Company Preferred Conversion)Pre-Closing Holder, (B) the number and class of Company Common Shares subject to each Company Warrant held Equity Securities owned by each holder thereofPre-Closing Holder, and (C) the number with respect to any Pre-Closing Holder that is a holder of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested or unvested as of immediately prior to the Effective Time;
(ii) in the case of the Company Options and Company Canceled Warrants, the aggregate exercise (or similar) price and, if applicable, the expiration (or similar) date;
(iii) (A) the Exchange Ratiopayable for such Pre-Closing Holder with respect to such Canceled Warrants, (B) the Series I Exchange Ratio and (CD) the portion of the Aggregate Transaction Share Total Merger Consideration (specifying the number of the SPAC New Common Shares) allocated to each Pre-Closing Holder (divided into the portion of the Aggregate Stock Consideration, and the Earn Out Shares and the Cash Funding Amount payable to such Pre-Closing Holder), (E) with respect to each Pre-Closing Holder of Company Common Share pursuant to Section 2.1(h) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubtOptions, the number of the SPAC New PTAC Common Shares that would be allocated to any such Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares)subject to, as well as, in the case of each of clauses (A) through (C), reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based);
(iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of per PTAC Common Share of, each Substituted Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
(vi) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i)PTAC Option, (ii), (iii), (ivF) and (v) of this Section 2.3(a) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Pre-Closing Holder of a Company Option and RSU award, the number of PTAC Common Shares subject to the PTAC RSU award (DG) in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Pre-Closing Holder of Company Warrant.
(b) Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this AgreementRestricted Shares, the Allocation Schedule will number of PTAC Common Shares subject to such Company Restricted Shares and (H) the number of Earn Out Shares to be substantially in issued to each Pre-Closing Holder upon the form occurrence of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must each Triggering Event set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis2.6, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC or any of its Representatives.
(c) Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iii) in no event shall the aggregate number of the SPAC New Common Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including the vested (but not unvested) Company Options is and Company Warrants (if any), exceed (A) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would will otherwise be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described accurate. Notwithstanding anything in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration Agreement to the Company Equityholders under this Agreement or under the Exchange Agent Agreementcontrary, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Total Merger Consideration on the Closing Date to in accordance with the Exchange AgentAllocation Schedule, the SPAC PTAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to the Aggregate Transaction Share Total Merger Consideration), and none of them shall have (Ai) any further obligations to the Company, any Company Equityholder Pre-Closing Holder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Aggregate Transaction Share Total Merger Consideration), or (Bii) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC PTAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Total Merger Consideration, as the case may be, among each Company Equityholder Pre-Closing Holder as set forth in such Allocation Schedule. The Company acknowledges and agrees that as of the date hereof certain Pre-Closing Holders have entered into Support Agreements, and following the date hereof, other Pre-Closing Holders may enter into additional Support Agreements (each, a “Supporting Pre-Closing Holder”), and the Company covenants and agrees that the Allocation Schedule shall not contain any reductions to the Applicable Company Stock Percentage of any Supporting Pre-Closing Holder, or all Supporting Pre-Closing Holders taken as a whole.
Appears in 1 contract
Allocation Schedule. (a) At least three two (32) Business Days prior to the Closing Date, the Company shall deliver to the SPAC ARYA an allocation schedule (the “Allocation Schedule”) setting forth:
forth (i) the number of Company Shares held by each Company Shareholder (A) including the number of Company Common Shares held by each Company Stockholder (for clarityimmediately prior to the Closing, after having given effect subject to the Company Preferred Conversion), (B) the number of Warrants that will be exercised for Company Common Shares subject pursuant to each Company Warrant Section 2.4(b) held by each holder thereof), and (C) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be vested a Vested Company Option or unvested an Unvested Company Option as of immediately prior to the Effective Time;
, (ii) in the case of the Company Options and Company WarrantsOptions, the exercise (or similar) price and, if applicable, the expiration (or similar) exercise date;
, (iii) (A) the Exchange Ratio, (B) the Series I Exchange Ratio and (C) the portion of the Aggregate Adjusted Transaction Share Consideration (specifying the number of the SPAC New Common Shares) allocated to each Company Common Option pursuant to Section 2.4(a) and the portion of the Adjusted Transaction Share Consideration allocated to each Company Share pursuant to Section 2.1(h2.1(b)(vii) or Section 2.1(j) (as applicable) based on the Exchange Ratio or Series I Exchange Ratio, as applicable (including, for the avoidance of doubt, the number each Company Share that is issued upon exercise of the SPAC New Common Shares that would be allocated Company Warrants immediately prior to any such Company Common Shares the Closing pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares2.4(b)), as well as, in the case of each of clauses (A) through (C)case, reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are basedthe Exchange Ratio);
, (iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Common Shares held by such Company Stockholder that are Dissenting Shares; and
(v) the exercise price of each Substituted Rollover Option at the Effective Time, which shall be determined in accordance with Section 2.4(a); and
and (viv) a certification, duly executed by an authorized officer of the Company, that that, to his or her knowledge and solely in his or her capacity as an officer of the Company (and without any personal liability), the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 2.3(aiv) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, respects and (B) in accordance with the Allocation Schedule Principles. The Allocation Schedule (and the calculations and determinations contained therein) will be prepared in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Shareholders Agreement and applicable Laws, (C) in the case of the Company Options, in accordance with the Company Equity Plan or the Company Charter, as applicable, and any applicable grant or similar agreement with respect to each Company Option and (D) and, in the case of the Company Warrants, in accordance with the applicable warrant agreement or similar agreement with respect to each Company Warrant.
(b) Section 2.3(b) Common Shares issued upon exercise of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Company Preferred Conversion and Warrants immediately prior to the Closing occurred as of the date of this Agreement and without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule; provided, that the Allocation Schedule must set forth the items described in Section 2.3(a) on a Company Stockholder-by-Company Stockholder basis, and will take into account any changes to the Company’s capitalization between the date of this Agreement and the date of delivery of the Allocation Schedule to the SPAC pursuant to Section 2.3(a2.4(b), the Company Warrant Agreement (collectively, the “Allocation Schedule Principles”). The Company will review and consider in good faith any comments to the Allocation Schedule provided by the SPAC ARYA or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by ARYA or any of its Representatives.
(c) . Notwithstanding the foregoing or anything to the contrary herein, (i) all Company Common Shares held by any Company Stockholder shall be aggregated, and the Exchange Ratio or Series I Exchange Ratio (as applicable) shall be applied to that aggregate number of shares held by such Company Stockholder, and not on a share-by-share basis, (ii) the aggregate number of the SPAC New Common Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options or Company Warrant (if any) will become subject, as applicable, under this Agreement will be rounded to the nearest whole share, (iiix) in no event shall the aggregate number of the SPAC New Common ARYA Shares set forth on the Allocation Schedule that are allocated in respect of the equity securities Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders), including ) exceed the vested Adjusted Transaction Share Consideration and (but not unvested) Company Options and Company Warrants (if any), exceed (Ay) the Aggregate Transaction Share Consideration, minus (B) the SPAC New Common Shares that would be allocated to Company Common Shares pursuant to Section 2.1(h) but for such Company Common Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any SPAC New Common Shares described in this clause (B) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.7), (iv) the SPAC ARYA Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable, and (v) upon delivery, payment and issuance of the Aggregate Transaction Share Consideration on the Closing Date to the Exchange Agent, the SPAC and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of the Aggregate Transaction Share Consideration, and none of them shall have (A) any further obligations to the Company, any Company Equityholder or any other Person with respect to the payment of the Aggregate Transaction Share Consideration, or (B) any Liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases the SPAC and its Affiliates (and, on and after the Closing, the Company and its Affiliates) from any and all claims arising out of or resulting from or related to such Allocation Schedule and the allocation of the Aggregate Transaction Share Consideration, as the case may be, among each Company Equityholder as set forth in such Allocation Schedule.
Appears in 1 contract
Sources: Business Combination Agreement (ARYA Sciences Acquisition Corp III)