Consideration Spreadsheet. Attached hereto as Exhibit F is a spreadsheet (the “Consideration Spreadsheet”) setting forth all of the following information, estimated as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Sources: Merger Agreement (BIO-TECHNE Corp)
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least three (3) Business Days before the Closing and concurrently with the delivery of the Estimated Closing Statement, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all ), certified by the Significant Stockholders, in their capacities as directors or officers of the following informationCompany, estimated which shall set forth, as of the Closing DateDate and immediately prior to the Effective Time, the following: (ai) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records detailed calculations of the CompanyClosing Merger Consideration, Closing Per Share Merger Consideration, Closing Total Merger Consideration and Closing Total Per Share Merger Consideration; (bii) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each Common Stockholder, Preferred Stockholder, Optionholder and Warrantholder (collectively, the “Securityholders”): (A) the names and mailing and email address, if available, of all such Persons; (B) and the number of Common Shares, and Preferred Shares held by such Persons; (C) such Person’s social security number (or tax identification number, if applicable); (D) the respective certificate number(s) representing such Company SecurityStock; (cE) the number of shares of Common Stock issuable upon the exercise of any Eligible Company Options held by such Person; (F) the number of shares of Common Stock issuable upon the exercise of any Unvested Options held by such Person; (G) the number of shares of Restricted Stock held by such Person; (H) the number of shares of Common Stock issuable upon the exercise of any Warrants held by such Person; (I) the Pro Rata Share applicable to such Person; (J) the cash portion of Closing Merger Consideration to be paid to such Person at the Closing; (K) the number of Ultimate Parent Shares issuable to such Person upon the exercise of any options to purchase Ultimate Parent Shares in respect of Unvested Options assumed or replaced by Parent pursuant to Section 2.6(b); (L) the number of Restricted Ultimate Parent Shares issuable to such Person in respect of Restricted Stock assumed or replaced by Parent pursuant to Section 2.6(c); (M) the amount of cash comprising the Closing Cash Consideration payable to each Company Securityholder in connection with the ClosingAdjustment Escrow Amount on behalf of such Person (expressed as a dollar amount); (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (fN) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating cash comprising the general nature Fund Amount on behalf of such expense Person (e.g., legal, accounting, etc.expressed as a dollar amount), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (lO) the Securityholders’ Representative Amount. In no event will amount of cash comprising the aggregate amount payable by Indemnity Escrow Amount on behalf of such Person (expressed as a dollar amount).
(b) The parties agree that Parent set forth and Merger Sub shall be entitled to rely on the Consideration Spreadsheet in making payments under this Article II and Parent and Merger Sub shall not be responsible for the calculations or the determinations regarding such calculations in such Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is a The Company shall have delivered to Buyer the consideration spreadsheet (the “Consideration Spreadsheet”) setting forth completed to include all of the following informationinformation and a certificate executed by the chief executive officer of the Company, estimated dated as of the Closing Date, certifying on behalf of the Company, and not in any personal capacity, that the Consideration Spreadsheet is true and correct: (ai) correct names of all Company Securityholders the name, the mailing address and their respective addresses, the email addresses and taxpayer identification numbers as and to the extent available and reflected address in the books and records of the Company, if available, of each Securityholder or Option Promisee; (bii) the amount number, class and type series of shares of Capital Stock held by, or subject to the Company Options held by, such Person and, in the case of outstanding shares, the respective certificate numbers representing such shares or a statement that such shares are not represented by certificates; (iii) the exercise price per share of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company SecurityOption; (civ) the calculation of the Net Closing Merger Consideration, the Per Share Common Closing Amount, the Per Share Series A Closing Amount; (v) the Fully Diluted Shares Outstanding; (vi) the amount of the Closing Cash Per Share Common Merger Consideration payable and the Per Share Series A Merger Consideration (expressed as a dollar amount) distributable to each Company Securityholder Stockholder pursuant to this Agreement in connection with exchange for the Capital Stock held by such Person at the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (fvii) the amount of Specified Transaction Expenses (including an itemized list of Per Option Share Closing Consideration distributable to each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person Optionholder pursuant to whom such expense is owed) and the wire transfer information of each such Person; (g) this Agreement in exchange for the Company Debt Payoff Amount, along with a breakdown Options held by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by such Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of at the Closing; (jviii) the Aggregate amount (expressed as a dollar amount) distributable to each Option Promisee at the Closing; (ix) the pro rata share of each Milestone Payment distributable to each Option Promisee, which amounts shall comprise Company Warrant Exercise Price Amount as Transaction Expenses to be deducted prior to the determination of the Closing and payments to the Aggregate Company Warrant Payment AmountSecurityholders in respect of such Milestone Payment; (kx) the Escrow Amount; whether each Stockholder, Optionholder and (l) the Securityholders’ Representative Amount. In no event Option Promisee will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted be paid by the Final Adjustment AmountPaying Agent or through the Company’s payroll in respect of the applicable securities of the Company held by such holder.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least five (5) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) ), prepared by the Company in good faith and setting forth all the following, in each case as of immediately prior to the Effective Time based, when relevant, on assumptions reasonably acceptable to Parent and that are described in detail in the Consideration Spreadsheet:
(i) the name and address of record of each Company Stockholder and the number and class, type, or series of shares of Company Common Stock held by each;
(ii) the number of Fully Diluted Company Shares;
(iii) detailed calculations of each of the following information(in each case, estimated as of determined without regard to withholding):
(A) the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Per Share Merger Consideration payable to each named Company Securityholder Stockholder;
(B) the Closing Exchange Ratio; and (C) for each Company Stockholder, its pro rata portion of the Merger Consideration Shares for its Company Common Stock;
(iv) any explanatory or supporting information, including calculations, as Parent may reasonably request.
(b) The Consideration Spreadsheet delivered hereunder shall be true complete and correct and shall contain the same information described in connection this Section 3.7.
(c) The contents of the Consideration Spreadsheet delivered by the Company pursuant to Section 3.7(a) shall be subject to reasonable review and comment by Parent, and shall comport with the Closing; provisions of this Agreement, but the Company shall, in all events, remain solely responsible for the contents of the Consideration Spreadsheet. Under no circumstances shall Parent or Merger Sub be responsible for the calculations or the determinations regarding such calculations in the Consideration Spreadsheet and the parties agree that Parent and Merger Sub shall be entitled to rely on the Consideration Spreadsheet in making payments under Article IV.
(d) Prior to the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among Closing, the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on shall update the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Considerationand deliver such updated Consideration Spreadsheet to Parent, as adjusted by promptly as practicable after the Final Adjustment Amountoccurrence of any event that would change the information set forth in the latest version of the Consideration Spreadsheet that it previously delivered to Parent.
(e) Nothing contained in this Section 3.7 or in the Consideration Spreadsheet shall be construed or deemed to: (i) modify the Company’s obligations pursuant to Section 6.1(b)(xviii) to obtain Parent’s prior consent to the issuance of any securities; or (ii) alter or amend the definitions of the Merger Consideration Shares or the Merger Consideration Shares.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company shall prepare and deliver to Acquiror, at least three (3) Business Days prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”) setting together with the Consideration Spreadsheet Certificate, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following informationinformation (in addition to the other required data and information specified therein), estimated as of the Closing DateDate and immediately prior to the Effective Time: (a) correct the names of all the Company Securityholders Stockholders, Company Optionholders and Company Noteholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount number and type kind of each shares of Company Security Capital Stock held by each by, or subject to Company Options or Company Notes held by, such Company SecurityholderPersons and, and in the correct case of outstanding shares, the respective certificate numbers with respect to each such Company Securitywhere applicable; (c) the amount exercise price per share of the Closing Cash Consideration payable to each Company Securityholder in connection with the ClosingOption; (d) the Pro Rata Portion classification of each Company SecurityholderOption under Section 422 of the Code; (e) the manner amount of cash issuable to each Company Holder pursuant to this Agreement in exchange for the Company Capital Stock held by such Persons (which any distribution amount shall be inclusive of the Escrow Amount will amount of cash required to be distributed among the deducted and withheld from such Persons for Taxes in respect of such Company Securityholders Capital Stock, if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculatedany); (f) the amount of Specified Transaction Expenses cash issuable to each Company Optionholder pursuant to this Agreement in exchange for Company Options held by such Persons (including an itemized list which amount shall be inclusive of each the amount of cash required to be deducted and withheld from such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), Persons for Taxes and the Person to whom amount of Tax payable by the Company in connection with such expense is owed) and the wire transfer information of each such PersonCompany Option, including any fringe benefit Tax); (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of cash issuable to each Company Debt and the wire transfer information of each lenderNoteholder pursuant to this Agreement in exchange for Company Notes held by such Persons; (h) the aggregate amount of cash issuable to each Plan Participant pursuant to this Agreement in respect of such Plan Participant’s Plan Award(s) under the Phantom Equity Plan (which amount shall be inclusive of the amount of cash required to be deducted and withheld from such Persons for Taxes and the amount of Tax payable by the Company Change in Control Paymentsconnection therewith, along with a breakdown by Person entitled to receive such paymentincluding any fringe benefit Tax); (i) the Aggregate Pro Rata Share (as a percentage interest) of each Company Option Exercise Price Amount Holder; and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Pro Rata Holdback Share (as a percentage interest) of each Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment AmountHolder.
Appears in 1 contract
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) Simultaneously with the execution of this Agreement, the Company has delivered to the Parent Parties a spreadsheet Consideration Spreadsheet (the “Consideration Spreadsheet”) setting forth all of ), prepared by the following informationCompany in good faith and detailing the following, estimated in each case, as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected Effective Time, based, when relevant, on assumptions reasonably acceptable to the Parent Parties which are described in detail in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; Spreadsheet:
(i) the Aggregate name and address of record of each Company Option Exercise Price Amount Shareholder and the Aggregate number and class, type or series of Company Option Payment Amount Ordinary Shares held by each;
(ii) the number of Company Ordinary Shares that will be issued and outstanding immediately prior to the Effective Time; and
(iii) detailed calculations of each of the following (in each case, determined without regard to withholding):
(A) the Per Share Merger Consideration Amount;
(B) the Per Share Merger Consideration;
(C) the Merger Consideration Shares to be issued at Closing;
(D) for each Company Shareholder, its Pro Rata Share of the Merger Consideration Shares;
(E) any explanatory or supporting information, including calculations, as Parent may reasonably request.
(b) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to the Parent Parties an updated Closing Consideration Spreadsheet as of immediately prior to the Closing; Effective Time.
(jc) the Aggregate Company Warrant Exercise Price Amount as The contents of the Closing Consideration Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by the Parent Parties, but the Company shall, in all events, remain solely responsible for the contents of each updated Consideration Spreadsheet. Under no circumstances shall any Parent Party be responsible for the calculations or the determinations regarding such calculations in any Consideration Spreadsheet so long as such calculations were not made by the Parent Parties and the Aggregate Company Warrant Payment Amount; (k) parties agree that the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth Parties shall be entitled to rely on the most recently delivered Consideration SpreadsheetSpreadsheet in making payments under this Article IV.
(d) Nothing contained in this Section 4.4 or in the Closing Consideration Spreadsheet shall be construed or deemed to: (i) modify the Company’s obligations to obtain Parent’s prior consent to the issuance of any securities pursuant to Section 7.1(a)(xix); or (ii) alter or amend the definition of Per Share Merger Consideration Amount, or any update thereto, exceed the Aggregate Closing Per Share Merger Consideration, as adjusted by the Final Adjustment AmountMerger Consideration, or Merger Consideration Shares.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least five (5) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) ), prepared by the Company in good faith and setting forth all the following, in each case as of immediately prior to the Effective Time based, when relevant, on assumptions reasonably acceptable to Parent and that are described in detail in the Consideration Spreadsheet:
(i) the name and address of record of each Company Stockholder and the number and class, type, or series of shares of Company Common Stock held by each;
(ii) the number of Fully Diluted Company Shares;
(iii) detailed calculations of each of the following information(in each case, estimated as of determined without regard to withholding):
(A) the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Per Share Merger Consideration payable to each named Company Securityholder Stockholder;
(B) the Closing Exchange Ratio; and
(C) for each Company Stockholder, its pro rata portion of the Closing Merger Consideration Shares and Closing Cash Consideration for its Company Common Stock;
(iv) any explanatory or supporting information, including calculations, as Parent may reasonably request.
(b) The Consideration Spreadsheet delivered hereunder shall be true complete and correct and shall contain the same information described in connection this Section 3.4, subject to Parent’s rights pursuant to Section 3.4(a)(iv).
(c) The contents of the Consideration Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by P▇▇▇▇▇, and shall comport with the Closing; provisions of this Agreement, but the Company shall, in all events, remain solely responsible for the contents of the Consideration Spreadsheet. Under no circumstances shall Parent or Merger Sub be responsible for the calculations or the determinations regarding such calculations in the Consideration Spreadsheet and the parties agree that Parent and Merger Sub shall be entitled to rely on the Consideration Spreadsheet in making payments under Article IV.
(d) Prior to the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among Closing, the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on shall update the Consideration Spreadsheet, and deliver such updated Consideration Spreadsheet to Parent, as promptly as practicable after the occurrence of any event that would change the information set forth in the latest version of the Consideration Spreadsheet that it previously delivered to Parent.
(e) Nothing contained in this Section 3.4 or in the Consideration Spreadsheet shall be construed or deemed to: (i) modify the Company’s obligations pursuant to Section 6.1(b)(xvii) to obtain Parent’s prior consent to the issuance of any update theretosecurities; or (ii) alter or amend the definition of the Closing Merger Consideration Shares or Closing Cash Consideration. For the avoidance of doubt, in no event shall the aggregate merger consideration payable to the Company Stockholders exceed the Aggregate Closing Merger Consideration Shares and the Closing Cash Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least two (2) Business Days before the Closing and concurrently with the delivery of the Estimated Adjustment Amount, the Company shall prepare and deliver to Buyer a spreadsheet (the “Consideration Spreadsheet”) setting forth all ), certified by the Chief Executive Officer of the following informationCompany, estimated which shall set forth, as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following:
(i) the Aggregate Company Option Exercise Price Amount names and addresses of all Stockholders and the Aggregate number of shares of Capital Stock held by such Persons;
(ii) the names and addresses of all Persons holding Company Option Payment Amount as Options (“Optionholders”), together with the number of shares of Capital Stock subject to the Company Options held by such Optionholders, the grant date and exercise price for such Company Options;
(iii) the names and addresses of all Persons holding Company Warrants (“Warrantholders”), together with the number of shares of Capital Stock subject to the Company Warrants held by such Warrantholders, the grant date and exercise price for such Company Warrants;
(iv) calculations of the Closing; Base Merger Consideration and Aggregate Closing Share Consideration;
(jv) the Aggregate Company Warrant Exercise Price Amount as each Stockholder’s, Optionholder’s and Warrantholder’s portion of the Per Share Closing Consideration, Per Option Share Closing Consideration, and the Aggregate Company Per Warrant Payment AmountShare Closing Consideration, as applicable;
(vi) each Stockholder’s, Optionholder’s and Warrantholder’s Pro Rata Share (as a percentage interest); and
(kvii) the Escrow Amount; each Indemnifying Securityholder’s Indemnity Pro Rata Share (as a percentage interest).
(b) The parties agree that Buyer, Merger Sub and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth Merger LLC shall be entitled to rely on the Consideration Spreadsheet in making payments hereunder and Buyer, Merger Sub and Merger LLC shall not be responsible for the calculations or the determinations regarding such calculations in such Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Aldeyra Therapeutics, Inc.)
Consideration Spreadsheet. Attached (a) The Company has prepared and delivered to Parent a Shareholder payment spreadsheet in substantially the form attached hereto as Exhibit F H (the “Payment Spreadsheet”), which shall be certified in writing as complete and accurate by the Chief Executive Officer and the Chief Financial Officer of the Company, setting forth the following information:
(i) with respect to each Effective Time Shareholder receiving Merger Consideration:
(A) the number of shares of Company Capital Stock of each class and series to be held by such Effective Time Shareholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis and including certificate numbers), the date of acquisition of such shares and, for shares acquired on or after January 1, 2011, the tax basis of such shares;
(B) the aggregate pro rata portion of the Merger Consideration payable to such Effective Time Shareholder after the deduction of the Transaction Expenses, including, without limitation the Change in Control Payments, in respect of all of the shares of Company Capital Stock held by such Effective Time Shareholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis); which shall include (1) with respect to the Initial Merger Consideration, the amount of Initial Cash Consideration and Stock Consideration to be received by such Effective Time Share Holder and (2) with respect to the Final Cash Payment and the Deferred Payments, if any, the pro rata distribution allocation to be received by such Effective Time Shareholder upon the final determination of the aggregate amount of such Merger Consideration.
(C) the total amount of Taxes required under applicable Laws to be withheld from the portion of the Merger Consideration that such Effective Time Shareholder is entitled to receive pursuant to Section 2.1(b), if any;
(D) the Pro Rata Portion of such Effective Time Shareholder; and
(E) the address of such Effective Time Shareholder where all Merger Consideration payable to such Effective Time Shareholder pursuant to this Agreement shall be mailed and, if known by the Company, wire transfer information for each such Effective Time Shareholder.
(ii) with respect to each Change in Control Payment Recipient receiving cash and/or Parent Common Stock:
(A) the aggregate Change in Control Payment, including the amounts of cash and/or Parent Common Stock, payable to such Change in Control Payment Recipient out of the Initial Merger Consideration;
(B) the pro rata distribution allocation to be paid to such Change in Control Payment Recipient to be received by such Change in Control Payment Recipient upon the final determination of the aggregate amount of the Final Cash Payment or the Deferred Payments, if any, as applicable;
(C) the total amount of Taxes required under applicable Laws to be withheld from the portion of the Change in Control Payment that such Change in Control Payment Recipient is entitled to receive pursuant to Section 2.1(b), if any;
(D) the Pro Rata Portion of such Change in Control Payment; and
(E) the address of such Change in Control Payment Recipient where all Change in Control Payments payable to such Change in Control Payments pursuant to this Agreement shall be mailed and, if known by the Company, wire transfer information for each such Change in Control Payment Recipient.
(b) The Company shall prepare and deliver to Parent a flow of funds spreadsheet (the “Flow of Funds Spreadsheet” which together with the Payment Spreadsheet, shall constitute the “Consideration Spreadsheet”) setting forth all which reflects (consistent with the other portions of the following informationConsideration Spreadsheet, estimated as of the Closing Date: (a) correct names of all Company Securityholders Payoff Letters and their respective addresses, email addresses and taxpayer identification numbers as and any other Contracts applicable to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following payments): (i) the Aggregate Company Option Exercise Price Amount and amounts payable to third parties (including each such third party’s wire instructions) for the Aggregate Company Option Payment Amount as full payment of the Closing; (j) Transaction Expenses, including without limitation, the Aggregate Company Warrant Exercise Price Amount as of Change in Control Payments that remain outstanding at the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; Effective Time, and (lii) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by such other information as Parent set forth reasonably requests.
(c) The Company acknowledges and agrees that Parent and its agents shall be entitled to rely on the Consideration Spreadsheet, or Spreadsheet for purposes of making any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amountpayments hereunder.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) The Company shall prepare and deliver to Purchaser in accordance with this Section 7.10, a spreadsheet (the “Consideration Spreadsheet”) which shall set forth for each Stockholder: (A) the name of such Stockholder, (B) the number of Shares held by such Stockholder, (C) the portion of the Estimated Purchase Price payable to such Stockholder in cash, (D) the account for such Stockholder to which such cash portion of the Estimated Purchase Price is to be delivered, and (E) the portion of the Estimated Purchase Price payable to such Stockholder in Purchaser Stock.
(b) The Company shall prepare and deliver to Purchaser a Consideration Spreadsheet not later than two Business Days prior to the Closing Date, certified by an officer of the Company on behalf of the Company, setting forth all of the following information, estimated required information as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Closing. The Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will Spreadsheet shall be distributed among the Company Securityholders if not prepared in accordance with the Pro Rata Portionapplicable provisions of the Governing Documents, the Company’s equity compensation plans, and this Agreement. The Company shall also provide to Purchaser, together with the manner Consideration Spreadsheet, such supporting documentation, information and calculations as are reasonably requested by Purchaser for it to verify and determine the calculations, amounts and other matters set forth in which each such distribution will the Consideration Spreadsheet.
(c) The parties agree that Purchaser shall be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive rely on the Consideration Spreadsheet in making payments under this Agreement and Purchaser shall not be responsible for the calculations or the determinations regarding such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent calculations in such Consideration Spreadsheet or any other information set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Sources: Merger Agreement (Genasys Inc.)
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company shall prepare and deliver to Parent, no less than two Business Days prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”) setting forth all of the following information, estimated as of the Closing Date: (ai) correct the names of all Company Securityholders (and their respective addresses, email addresses and taxpayer identification numbers such other information as and to the extent available and Paying Agent may reasonably request) as reflected in the records of the Company; (bii) the amount Company Shares, Cashed-Out Options, and type of each Company Security Cashed-Out Warrants held by each such Company Securityholder, and the correct certificate numbers with respect Securityholders immediately prior to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (fiii) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g.i.e., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (giv) the aggregate amount of Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (iv) the Aggregate Company Vested Option Exercise Price Amount, the Aggregate Vested Option Payment Amount, the Aggregate Warrant Exercise Price Amount, the Aggregate Warrant Payment Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Plan Payment Amount; (kvi) the amount of Aggregate Merger Consideration payable to each Company Securityholder (subject to the terms and conditions of this Agreement and any Option Termination Agreement or any Warrant Termination Agreement to which such Company Securityholder is a party) in exchange for the Company Shares, Cashed-Out Options Cashed-Out Warrants or the Change of Control Plan Rights held by such Company Securityholder; (vii) the Indemnity Escrow Amount; (viii) the Special Escrow Amount; and (lix) each Company Securityholder’s Pro Rata Portion of the amounts contributed to the Escrow Fund and the Representative Account. Unless otherwise provided herein in Section 1.3(a)(ii), Parent shall make all payments made pursuant to this Agreement in cash by wire transfer of immediately available funds. For the avoidance of doubt, the Applicable Per Share Amount and the amounts that the Company Securityholders are entitled to receive pursuant to Sections 1.3, 1.4, 1.6, 1.7, 1.11 and 1.12 is calculated by allocating the Aggregate Merger Consideration in accordance with (i) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent liquidation provisions set forth on in the Consideration SpreadsheetCompany Charter, or any update thereto(ii) with respect to each Cashed-Out Option, exceed the Aggregate Closing Merger Considerationcalculation of the Vested Option Payment Amount in accordance with the terms and conditions of this Agreement and the respective Option Termination Agreement, as adjusted by (iii) with respect to each Cashed-Out Warrant, the Final Adjustment Amount.calculation of the Company Warrant Payment Amount in accordance with the terms and conditions of this Agreement and the respective Company Warrant Termination Agreement, and
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least five (5) Business Days prior to the Closing, the Company shall deliver to SPAC a spreadsheet (the “Consideration Spreadsheet”) setting forth all of ), prepared by the following informationCompany in good faith and detailing the following, estimated in each case, as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; Effective Time:
(i) the Aggregate name and address of record of each Company Option Exercise Price Amount Shareholder and the number of shares of Domesticated Company Common Stock held by it;
(ii) the name and address of record of each holder of Domesticated Company Warrants and the number of shares of Domesticated Company Common Stock subject to each Company Warrant held by it;
(iii) the names of record of each holder of Domesticated Company Options, and the exercise price, number of shares of Domesticated Company Common Stock subject to each Domesticated Company Options held by it (including, in the case of unvested Domesticated Company Options, the vesting schedule, vesting commencement date, date fully vested);
(iv) the number of Aggregate Fully Diluted Company Option Payment Amount as Common Stock;
(v) detailed calculations of each of the Closing; following (jin each case, determined without regard to withholding):
(A) The Aggregate Merger Consideration;
(B) the Aggregate Per Share Merger Consideration;
(C) the Exchange Ratio;
(D) for each Domesticated Company Warrant Exercise Price Amount as Option, the exercise price therefor and the number of shares of Domesticated SPAC Common Stock subject to such Domesticated Company Option; and
(E) for each Domesticated Company Warrant, the exercise price therefor and the number of shares of Domesticated SPAC Common Stock subject to such Domesticated Company Warrant. The draft Consideration Spreadsheet (containing only certain of the Closing and the Aggregate Company Warrant Payment Amount; (kinformation required by this Section 3.7(a)) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent are set forth in Section 3.7(a) of the Company Disclosure Letter.
(b) The contents of the Consideration Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by SPAC, but the Company shall, in all events, remain solely responsible for the contents of the Consideration Spreadsheet. The parties agree that SPAC shall be entitled to rely on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment AmountSpreadsheet in making payments under Article III.
Appears in 1 contract
Sources: Business Combination Agreement (HH&L Acquisition Co.)
Consideration Spreadsheet. Attached At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a spreadsheet in the form attached hereto as Exhibit F is a D (such form, the “Illustrative Consideration Spreadsheet”) reflecting (i) the Initial Amount and the Company’s good faith estimate of the Closing Excess Cash Amount (including the Company Fees and Expenses and the Closing Net Working Capital Amount), which amounts shall be consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided if such consent has been withheld and no agreement between the Company and Parent can be reached after good faith negotiations by close of business on the Business Day prior to the Closing Date, the parties shall proceed to Closing on the Closing Date and the Consideration Spreadsheet as initially delivered shall be used for purposes of this Section 2.12(j)(i), (ii) the Aggregate Series B Preference Amount, the Per Share Series B Preference Amount, the Aggregate Series A Preference Amount, the Per Share Series A Preference Amount, the Closing Company Share Number, the Per Share Merger Consideration and the Per Share Shareholders’ Agent Reserve Fund Amount, (iii) the Aggregate Exercise Amount and the amount payable in connection with the Closing to each Cashed-Out Holder and holder of Company Investor Options or Company Warrants, (iv) with respect to each of the foregoing items (to the extent applicable), the portion thereof payable in cash and shares of Parent Common Stock (and the number of shares of Parent Common Stock to be issued in connection therewith), (v) each Effective Time Holder’s Proportionate Share and the amount payable in connection with the Closing to each Effective Time Holder, (vi) each Effective Time Holder’s physical and e-mail address, (vii) wire instructions for any amounts to be paid on behalf of the Surviving Corporation pursuant to Section 2.12(i), and (viii) any fees and expenses to be paid from any Milestone Payment or PRV Payment upon direction of the Shareholders’ Agent pursuant to Section 2.12(i) (the spreadsheet (described in this sentence, the “Consideration Spreadsheet”) setting forth all of the following information, estimated as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected ). The calculations contained in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted delivered by the Final Adjustment AmountCompany to Parent, shall be made without regard to withholding and shall be used to determine the amounts to be paid at the Closing pursuant to this Article II (and the Proportionate Shares of the Effective Time Holders specified therein shall be used to allocate payments to be made to or by the Effective Time Holders after the Closing). For the avoidance of doubt, the Consideration Spreadsheet shall not include any payments to be made under the Series B Additional Purchase Price Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Amicus Therapeutics Inc)
Consideration Spreadsheet. Attached hereto as Exhibit F is a spreadsheet (the “Consideration Spreadsheet”) setting forth all of the following information, estimated as of the Closing Date: (a) correct names of all Company Securityholders (and their respective addresses, email addresses and taxpayer identification numbers such other information as and to the extent available and Paying Agent may reasonably request) as reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Company Cash; (g) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (gh) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (hi) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (ij) the Aggregate Company Warrant Exercise Price Amount and the Aggregate Company Warrant Payment Amount as of the Closing; (k) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (kl) the Escrow Amount; and (lm) the Securityholders’ Representative Contingency Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, (including for Dissenting Shares) exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amountpursuant to Section 1.5.
Appears in 1 contract
Sources: Merger Agreement (Techne Corp /Mn/)
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company shall prepare and deliver to Parent, no less than six (6) calendar days prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”) setting in the form agreed to by the Company and Parent, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information, estimated as of the Closing Date: (a) correct the names of all the Company Securityholders Holders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount number and type kind of each shares of Company Security Common Stock held by each by, or subject to the Company Options held by, such Company Securityholder, and the correct certificate numbers with respect to each such Company SecurityPersons; (c) the amount exercise price per share of the Closing Cash Consideration payable to each Company Securityholder in connection with the ClosingOption; (d) the Pro Rata Portion of each Company Securityholder; Fully-Diluted Number, (e) the manner in which any distribution calculation of the Escrow Amount will be distributed among Adjustment Amount, Company Cash, Company Debt (including an itemized list of each item of Company Debt indicating the Company Securityholders if not in accordance with Person to whom such expense is owed), as part of the Pro Rata PortionClosing Debt Certificate, the Estimated Merger Consideration and the manner in which each such distribution will be calculatedCommon Stock Per Share Amount; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Transactional Expense indicating the general nature of such expense (e.g.i.e., legal, accounting, etc.), ) and the Person to whom such expense is owed) and ), as part of the wire transfer information of each such PersonClosing Expense Certificate; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of cash issuable to each Company Debt and Holder in exchange for the wire transfer information of each lenderCompany Common Stock held by such Persons; (h) the aggregate amount of cash issuable to each holder of a Company Change Option in Control Paymentsexchange for the Company Options held by such Persons (including the amount of cash required to be deducted and withheld from such Persons for Taxes and the amount of Tax payable by the Company in connection with such Company Option, along with a breakdown by Person entitled to receive such paymentincluding any fringe benefit Tax); and (i) the Aggregate Significant Shareholder Percentage Interest of the Escrow Fund applicable to each Significant Shareholder. Unless otherwise provided herein, all payments from Parent to or for the benefit of the Former Shareholders shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the Former Shareholders or the Shareholders’ Agent in accordance with each Former Shareholder’s Percentage Interest, and all payments from Parent to or for the benefit of the holders of Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount shall be made in cash by wire transfer of immediately available funds to such bank account(s) as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted shall be designated in writing by the Final Adjustment Amountholders of Company Options or the Shareholders’ Agent.
Appears in 1 contract
Sources: Merger Agreement (Stanley, Inc.)
Consideration Spreadsheet. Attached hereto as Exhibit F is a The consideration spreadsheet (the “Consideration Spreadsheet”) setting forth completed to include all of the following informationinformation and a certificate executed by the Chief Executive Officer of the Company, estimated dated as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records certifying on behalf of the CompanyCompany that the Consideration Spreadsheet is true and correct (which Consideration Spreadsheet shall be in form and substance reasonably satisfactory to Parent):
(i) (A) the Estimated Unpaid Transaction Expenses (together with a breakdown thereof); (bB) the amount Estimated Indebtedness (together with a breakdown thereof); (C) the Estimated Cash; (D) the Estimated Net Working Capital (together with a breakdown thereof); (E) the Aggregate Exercise Price; (F) the Aggregate Merger Consideration; (G) the Per Share Merger Consideration; (H) the Fully Diluted Shares; and type of each Company Security held by each such Company Securityholder, and (I) the correct certificate numbers Highest In the Money Exercise Price;
(ii) with respect to each Person who is a Shareholder as of immediately prior to the Effective Time: (A) the name and address of record (and email address, if available) of such Company SecurityShareholder; (cB) the amount number of the Closing Cash Consideration payable to shares of Capital Stock of each Company Securityholder in connection with the Closingclass and series held by such Shareholder (on a certificate-by-certificate basis and including certificate numbers, or electronic equivalent); (dC) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each consideration that such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense Shareholder is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (ipursuant to each of Section 3.1(b) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as before deduction of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) amounts to be contributed to the Escrow Amount; Funds and (l) the Securityholders’ Representative Amount. In no event will Expense Fund; (D) the aggregate cash amount payable to be contributed to the Escrow Funds and Securityholders’ Representative Expense Fund by Parent set forth on each such Shareholder; and (E) the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted net cash amount to be paid to each such Shareholder by the Final Adjustment AmountPaying Agent upon delivery of such Shareholder’s AmericasActive:12666190.14 Letter of Transmittal and other Required Shareholder Information in accordance with Section 3.1(b)(i);
(iii) with respect to each In the Money Vested Option: (A) the name and address of record (and email address, if available) of the holder thereof; (B) the exercise price per share and the number of shares of Common Stock subject to such In the Money Vested Option, and the number of shares that are vested as of immediately prior to the Effective Time; (C) whether or not such In the Money Vested Option constitutes a Non-Withholding Option; (D) the consideration that the holder thereof is entitled to receive pursuant to Section 3.2(a) before deduction of amounts to be contributed to the Escrow Funds and the Securityholders’ Representative Expense Fund; (E) the cash amount to be contributed to the Escrow Funds and Securityholders’ Representative Expense Fund by the holder thereof; and (F) the net cash amount to be paid to such holder in accordance with Section 3.2(a)(i); and
(iv) with respect to each Company Option that is outstanding immediately prior to the Effective Time (other than any In the Money Vested Option): (A) the name and address of record (and email address, if available) of the holder thereof; and (B) the exercise price per share and the number of shares of Common Stock subject to such Company Option.
Appears in 1 contract
Sources: Merger Agreement (Hub Group, Inc.)
Consideration Spreadsheet. Attached hereto (a) The Preliminary Consideration Spreadsheet sets forth a summary of the allocation (prepared in good faith and reasonably estimated as Exhibit F is of the date hereof) of the amounts payable to the Effective Time Holders pursuant to this Agreement. As contemplated by Section 7.3(i), the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all of ), certified by the following information, estimated as of the Closing Date: (a) correct names of all Company Securityholders Chief Executive Officer and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records Chief Financial Officer of the Company; , setting forth for each Holder:
(bi) the amount name and address (including email address) of such Holder;
(ii) the number and type of each shares of Company Security Stock that will be held by each such Holder as of immediately prior to the Effective Time (including after giving effect to the exercise or deemed exercise of any Vested Company SecurityholderWarrants, and identifying any such Shares) and, in the correct certificate numbers case of shares of Series A Preferred Stock and Series A-1 Preferred Stock, the number of shares of Company Common Stock issuable to such Holder upon conversion thereof pursuant to the Company Charter;
(iii) (A) the number and type of Company Options held by such Holder, (B) the exercise price with respect to each such Company Security; Option, (cC) the vested and exercisable portion of any such Company Option, (D) the vesting schedule with respect to such Company Option and (E) whether the Transaction triggers any acceleration (and if so, the portion of the Company Option that will be accelerated);
(iv) the amount of the Closing Cash Consideration cash payable to each such Holder pursuant to Section 2.7 as Closing Consideration for such Holder’s Company Securityholder in connection with the Closing; Stock or Vested In-the-Money Options;
(dv) the Pro Rata Portion number of each Unvested In-the-Money Options held by such Holder that are deemed assumed by Parent pursuant to Section 2.7(b)(ii), including the number of shares of Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata PortionCommon Stock that are subject to vesting, and the manner in which each exercise price per share of the Company Common Stock subject to such distribution will be calculated; assumed Company Options;
(fvi) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature cash to be deposited in respect of such expense Holder into (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (gA) the Company Debt Payoff AmountAdjustment Escrow Fund, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (hB) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; Indemnity Escrow Fund and (iC) the Aggregate Company Option Exercise Price Amount Holder Representative Fund; and
(vii) such Effective Time Holder’s Pro Rata Percentage.
(b) The parties acknowledge and agree that any discrepancy between the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing Merger Consideration payable pursuant to Section 2.7 and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, the provisions of Section 2.7 shall prevail; provided, however, that this Section 2.11(b) shall have no impact in respect of the indemnification for any inaccuracies in or any update thereto, exceed omissions from the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment AmountConsideration Spreadsheet pursuant to Section 8.2(d).
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least three (3) Business Days before the Closing and concurrently with the delivery of the Estimated Closing Working Capital Statement, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all ), certified by the chief executive officer or chief financial officer of the following informationCompany, estimated which shall set forth, as of the Closing Date: Date and immediately prior to the Effective Time, the following:
(ai) correct names of all Company Securityholders and their respective addressesthe name (and, email addresses and taxpayer identification numbers as and to the extent available and reflected in reasonably available, the records of the Company; (blast known address and, if known, email address) the amount and type of each Company Security held by Stakeholder and, for each Company Securityholder, (A) the number, class and series of Company Capital Stock, (B) the number of outstanding Company Options, and the associated exercise price, and/or (C) the number of outstanding Company Warrants, and the associated exercise price, in each case, as applicable to such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; ;
(cii) the amount calculations of the Closing Cash Consideration payable to each Company Securityholder Merger Consideration, in connection with the Closing; reasonable detail;
(diii) the Pro Rata Portion calculations of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company all Closing Net Option Payments and all Closing Net Warrant Payments, in reasonable detail;
(iv) calculations of the aggregate amount of Change in of Control Payments, along in reasonable detail (with a breakdown by Person the understanding that Parent will inform the Company at least five (5) Business Days prior to the Closing as to which Employees that are entitled to receive severance under a written agreement between such payment; (i) the Aggregate Company Option Exercise Price Amount Employee and the Aggregate Company Option Payment Amount will be terminated as of the Closing; , and such severance payment will constitute a Change of Control Payment);
(jv) the Aggregate each Company Warrant Exercise Price Amount as Stakeholders’ applicable portion of the Closing Merger Consideration;
(vi) each Company Stakeholders’ applicable portion (on an estimated basis) of any Earn-out Payment, Escrow Release Amount, and Expense Fund Distribution Amount; and
(vii) the Closing Employer Tax Amount.
(b) The parties agree that Parent, Merger Sub, and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth Paying Agent shall be entitled to rely on the Consideration Spreadsheet in making payments under Article I, and Parent, Merger Sub, and the Paying Agent shall not be responsible for the calculations or the determinations regarding such calculations in such Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least five Business Days prior to the Closing Date, Seller shall prepare and deliver to Buyer a spreadsheet (the “Consideration Spreadsheet”), certified by an Officer of Seller, which sets forth, as of immediately prior to the Closing, the following:
(i) setting forth all the names and addresses (including email addresses), and wire instructions of the following information, estimated as each Seller Stockholder;
(ii) calculations of the Closing Date: Transaction Consideration, the Closing Share Number, the Fully Diluted Share Number, the Per Share Amount, the Per Share Escrow Amount and the Per Share Stockholder Rep Amount;
(aiii) correct the Pro Rata Share of each Seller Stockholder (as a percentage interest), with separate identification of the Closing Transaction Consideration in dollar terms of to be received by each Seller Stockholder;
(iv) the aggregate amount in dollar terms to be contributed by each Seller Stockholder to each of the Adjustment Escrow Amount and the Indemnity Escrow Amount;
(v) the aggregate amount in dollar terms to be contributed by each Seller Stockholder to the Seller Stockholder Representative Expense Fund;
(vi) the names and addresses (including email addresses) of all Company Securityholders and their respective addressesSeller Optionholders, email addresses and taxpayer identification numbers as and to whether each Seller Optionholder is a current or former employee or an independent contractor, the extent available and reflected in the records number of the Company; (b) the amount and type of each Company Security Seller Options held by each such Company SecurityholderPersons, the number of vested and unvested Seller Options held by such Persons, and the correct certificate numbers Closing Seller Option Consideration payable to each such Seller Optionholder as well as any applicable Tax withholding and the employer portion of any Taxes payable with respect thereto and, with respect to each such Company Security; Seller Optionholder;
(cvii) the amount names and addresses (including email addresses) of all Seller SARs Holders, whether each Seller SARs Holder is a current or former employee or an independent contractor, the number of Seller SARs held by such Persons, the number of vested and unvested Seller SARs held by such Persons, and the Closing Cash Seller SARs Consideration payable to each Company Securityholder in connection such Seller SARs Holder as well as any applicable Tax withholding and the employer portion of any Taxes payable with the Closing; respect thereto and with respect to each Seller SARs Holder;
(dviii) the Pro Rata Portion names and addresses (including email addresses) of all Seller Warrant Holders, the number of shares of Seller Common Stock subject to Seller Warrants held by such Persons and the Closing Seller Warrant Consideration payable to each Company Securityholdersuch Seller Warrant Holder as well as any applicable Tax withholding and the employer portion of any Taxes payable with respect thereto and with respect to each Seller Warrant Holder; and
(eix) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portionnames and addresses, invoices, and wire instructions of any recipients of payments by or on behalf of Buyer pursuant to Section 2.5(b). US-DOCS\131312541.20
(b) The Parties agree that Buyer is and shall be entitled to rely on the manner Consideration Spreadsheet in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses making payments under Article II (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.as it may be adjusted pursuant to Section 2.9), and that Buyer is and shall not be responsible for the Person to whom such expense is owed) and calculations or the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as determination of the Closing; (j) amounts payable as a result of such calculations in such Consideration Spreadsheet or liable to any Person for the Aggregate Company Warrant Exercise Price Amount as accuracy of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amountpayments made to such holders in accordance therewith.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company shall prepare and deliver to Parent (with a copy to the Securityholder Representative), at or prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”) setting ), which shall be dated as of the Closing Date and shall set forth all of the following informationinformation (in addition to the other required data and information specified therein), estimated as of immediately prior to the Closing DateFirst Step Merger Effective Time: (a) correct the names of all the Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount number and type class and series of each shares of Company Security Capital Stock held by each by, or subject to the Company Options held by, such Company SecurityholderSecurityholders and, and in the correct case of outstanding shares, the respective certificate numbers with respect to each representing such Company Securityshares; (c) the amount exercise price per share, the date of grant, and the vesting schedule of each Company Option; (d) the Tax status of each Company Option under Section 422 of the Closing Code; (e) the calculation of the Per Share Stock Liquidation Preference, Per Share Cash Liquidation Preference, Per Share Common Stock Consideration and/or Per Share Common Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount number of Specified Transaction Expenses (including an itemized list Shares issuable to each holder of each such Specified Transaction Expense indicating the general nature Company Options in respect of such expense (e.g.Assumed Options issuable pursuant to this Agreement, legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Pro Rata Share applicable to each Company Debt Payoff AmountIndemnifying Person, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount Pro Rata Share of the Escrow Fund and Representative Expense Fund applicable to each Company Change Indemnifying Person to be deposited with the Escrow Agent (or in Control Paymentsthe case of the Representative Expense Fund, along with the Securityholder Representative) at Closing for each Company Indemnifying Person. At least three (3) Business Days prior to the Closing, the Company shall deliver to Parent a breakdown by Person entitled to receive such payment; (i) draft of the Aggregate Company Option Exercise Price Amount Consideration Spreadsheet and the Aggregate Company Option Payment Amount as shall promptly notify Parent of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, any modifications or any update changes thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company shall prepare and deliver to the Acquiror, at least three (3) Business Days before the Closing Date, a spreadsheet (the “Consideration Spreadsheet”) setting ), which spreadsheet shall be dated as of the Closing Date and signed by an officer of the Company, and shall set forth all of the following information, estimated information as of the Closing Date: :
(ai) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each Stockholder (A) the name, address and email address of record of such Company SecurityStockholder; (cB) the amount number and class of Shares held by such Stockholder; (C) the date of issuance of the Shares held by such Stockholder; (D) the Closing Cash Per Share Merger Consideration payable owed to such Stockholder; (E) whether (but not the amount of) Tax withholding is required (other than backup withholding); (F) for each “covered security” (as defined in Section 6045 of the Code), the acquisition date and tax basis of such security; (G) such Stockholder’s proportionate share of the Indemnity Escrow Amount (assuming the full Indemnity Escrow Amount is paid to the applicable Company Securityholders); (H) such Stockholder’s proportionate share of the Expense Fund Amount (assuming the full Expense Fund Amount is paid to the applicable Company Securityholders); and (I) such Stockholder’s proportionate share of the Milestone Consideration (assuming the full Milestone Consideration is owed to the applicable Company Securityholders).
(ii) with respect to each Company Securityholder in connection with holder of a First Tranche SAFE, (A) the Closingname, address, and email address of record of such holder; (dB) the Pro Rata Portion notional number of each Company Securityholder; (e) the manner in which any distribution Shares that would be issued upon conversion of the Escrow Amount will be distributed among First Tranche SAFE held by such holder based on the Company Securityholders if not “Conversion Amount” (as defined in such First Tranche SAFEs) in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculatedterms thereunder; (fC) the amount date of Specified Transaction Expenses issuance of the First Tranche SAFE held by such holder; (including an itemized list D) the Purchase Amount and Valuation Cap (each as defined in such First Tranche SAFE) of each the First Tranche SAFE held by such Specified Transaction holder; (E) such First Tranche SAFE holder’s Indemnity Escrow Fully Diluted Percentage and Expense indicating Fund Fully Diluted Percentage; (F) the general nature Closing Per Share Merger Consideration owed to such holder of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such PersonFirst Tranche SAFE; (gG) such holder’s proportionate share of the Indemnity Escrow Amount (assuming the full Indemnity Escrow Amount is paid to the applicable Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lenderSecurityholders); (hH) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as holder’s proportionate share of the Closing; Expense Fund Amount (j) assuming the Aggregate full Expense Fund Amount is paid to the applicable Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow AmountSecurityholders); and (lI) such holder’s proportionate share of the Milestone Consideration (assuming the full Milestone Consideration is owed to the applicable Company Securityholders);
(iii) with respect to each holder of a Second Tranche SAFE, (A) the Securityholders’ Representative name, address, and email address of record of the holder; (B) the date of issuance of the Second Tranche SAFE held by such holder; (C) the Purchase Amount and Valuation Cap (as defined therein) of the Second Tranche SAFE held by such holder; and (D) the Second Tranche SAFEs Cash Amount and Second Tranche SAFEs Share Amount. In no event will , respectively, owed to such holder in respect of such holder’s Second Tranche SAFE; and
(iv) the aggregate name, amount payable by Parent set forth on the Consideration Spreadsheet, or and wiring instructions with respect to any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment AmountTransaction Expenses and Payoff Indebtedness.
Appears in 1 contract
Consideration Spreadsheet. Attached The Consideration Spreadsheet attached hereto as Exhibit F is a spreadsheet (sets forth the “Consideration Spreadsheet”) setting forth all of the following information, estimated as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type name of each Company Security held by each such Company SecurityholderSeller, and the correct certificate numbers with respect to each such Company Security; (c) the amount of cash such Seller is entitled to receive at the Closing Cash Consideration payable pursuant to this Section 1.6, the Purchased Subsidiary Membership Interests Purchase Price (and the methodology of determining such amount) and the portion thereof each Company Securityholder in connection with holder of vested Purchased Subsidiary Membership Interests is entitled to receive at the Closing; Closing pursuant to this Section 1.6, the Installment Payment Retention Amount (dand the methodology of determining such amount) and the Pro Rata Portion portion thereof each holder of each Company Securityholder; unvested Purchased Subsidiary Membership Interests is entitled to receive under their respective Installment Payment Retention Agreement (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not subject to forfeiture in accordance with the Pro Rata Portionterms thereof), each based on the assumptions set forth therein, and sets forth the manner in which recipients and amounts of any Closing Payments and Assumed Obligations as of the date hereof. No later than two (2) and no earlier than four (4) Business Days prior to the Closing, the Company shall deliver to the Buyer (i) an updated Consideration Spreadsheet setting forth the final calculations of the amounts due at the Closing to each such distribution Seller pursuant to this Section 1.6 and the Purchased Subsidiary Membership Interests Purchase Price and Installment Payment Retention Amount and the recipients thereof pursuant to the ▇▇▇▇▇ Education Transfer Agreement and the Installment Payment Retention Agreement, and (ii) the recipients and amounts of any Closing Payments and Assumed Obligations to be paid by the Buyer. Each of the parties hereto acknowledges and agrees that the Consideration Spreadsheet attached hereto sets forth the methodology for allocating the Purchase Price but contains only estimates of the amounts actually payable at Closing. Without limiting the generality of the foregoing, each of the parties hereto acknowledges and agrees that the portion of the Purchase Price that will be calculatedpayable to the Sellers of the Holding Companies will be the portion of the Purchase Price otherwise allocable to the Non-Purchased Company Membership Interests; provided, that (fA) the amount Estimated SP Holdings CODI Liability shall reduce the portion of Specified Transaction Expenses the Purchase Price payable to the Seller of the Stock of SP Holdings (including an itemized list and not any portion of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.Purchase Price payable to any other Seller), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (gB) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and Estimated SD Holdings CODI Liability shall reduce the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as portion of the Closing; (j) Purchase Price payable to the Aggregate Company Warrant Exercise Price Amount as Seller of the Closing Stock of SD Holdings (and not any portion of the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount Purchase Price payable by Parent set forth on the Consideration Spreadsheet, or to any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amountother Seller).
Appears in 1 contract
Sources: Securities Purchase and Sale Agreement (Corinthian Colleges Inc)
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to Parent a consideration spreadsheet (the “Consideration Spreadsheet”) setting forth all of ), prepared by the following informationCompany in good faith and detailing the following, estimated in each case, as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected Effective Time, based, when relevant, on assumptions reasonably acceptable to Parent which are described in detail in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; Spreadsheet:
(i) the Aggregate name and address of record of each Company Option Exercise Price Amount Stockholder and the Aggregate number and class, type or series of shares of Company Option Payment Amount as Capital Stock held by each, and in the case of shares of each series of Company Preferred Stock, the number of shares of Company Common Stock into which such shares of Company Preferred Stock are convertible;
(ii) the number of Fully Diluted Company Shares; and
(iii) detailed calculations of each of the Closing; following (jin each case, determined without regard to withholding):
(A) the Aggregate Per Share Merger Consideration Amount;
(B) the Conversion Ratio;
(C) the Merger Consideration Shares;
(D) for each Company Warrant Exercise Price Amount as Stockholder, its pro rata portion of the Closing Merger Consideration Shares for its shares of Company Preferred Stock and Company Common Stock;
(b) The contents of the Consideration Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by Parent, but the Company shall, in all events, remain solely responsible for the contents of the Consideration Spreadsheet. Under no circumstances shall Parent or Merger Sub be responsible for the calculations or the determinations regarding such calculations in the Consideration Spreadsheet so long as such calculations were not made by Parent or Merger Sub and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; parties agree that Parent and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth Merger Sub shall be entitled to rely on the Consideration Spreadsheet, Spreadsheet in making payments under this ARTICLE III.
(c) Nothing contained in this Section 3.5 or in the Consideration Spreadsheet shall be construed or deemed to: (i) modify the Company’s obligations to obtain Parent’s prior consent to the issuance of any update thereto, exceed securities pursuant to Section 6.1(a)(xvi); or (ii) alter or amend the Aggregate Closing definition of Per Share Merger Consideration, as adjusted by the Final Adjustment AmountConsideration Amount or Merger Consideration Shares.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is a spreadsheet (the “Consideration Spreadsheet”) setting forth all of the following information, estimated as of the Closing DateEach Selling Shareholder hereby irrevocably and unconditionally acknowledges and agrees that: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records case of the CompanyMajority Shareholder, the sole consideration payable to such Majority Shareholder hereunder in respect of its Distributed Interests sold pursuant to this Agreement shall be such Majority Shareholder’s Net Closing Cash Allocation, Majority Shareholder Note, Earn-Out Cash Allocation (2021) and/or Earn-Out Cash Allocation (2022), as applicable, pursuant to Section 1.3 or Pro Rata Share of the Purchase Price Underpayment pursuant to Section 1.6(a), as may be reduced by an amount equal to such Majority Shareholder’s Pro Rata Share of the Purchase Price Overpayment, in each case shown in the Consideration Spreadsheet as payable and issuable to such Majority Shareholder; (b) in the case of each Minority Shareholder, the sole consideration payable to such Minority Shareholder hereunder in respect of its Distributed Interests sold pursuant to this Agreement shall be such Minority Shareholder’s Net Closing Cash Allocation, Equity Consideration Allocation, Earn-Out Cash Allocation (2021) and/or Earn-Out Cash Allocation (2022), as applicable, pursuant to Section 1.3 or Minority Pro Rata Share of the Purchase Price Underpayment pursuant to Section 1.6(a) and Adjustment Escrow Contribution Amount, as may be reduced by an amount equal to such Minority Shareholder’s Minority Pro Rata Share of the Purchase Price Overpayment, in each case shown in the Consideration Spreadsheet as payable and issuable to such Minority Shareholder; and (c) such Selling Shareholder forever waives and discharges any and all rights or claims of any kind whatsoever that such Selling Shareholder has or may have to receive consideration in respect of the Distributed Interests in excess of the amount and type of each Company Security held by each shown as payable to such Company SecurityholderSelling Shareholder in the Consideration Spreadsheet. For U.S. federal income tax purposes, and the correct certificate numbers with respect to the Company’s obligations, if any, under the P▇▇▇▇ ▇▇▇▇▇▇▇ Facility, each such Company Security; (c) Selling Shareholder shall be treated as though it first received the amount items of consideration described in this Section 1.7 or amounts attributable to the P▇▇▇▇ ▇▇▇▇▇▇▇ Facility that reduced his, her or its Net Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among Allocation and then directed the Company Securityholders if not in accordance with or Purchaser to apply such consideration for purposes of satisfying such obligations under the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etcP▇▇▇▇ ▇▇▇▇▇▇▇ Facility.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) The Company shall prepare and deliver to Parent a Stockholder payment spreadsheet (the “Payment Spreadsheet”), which shall be certified in writing as complete and accurate by the Chief Executive Officer and the Chief Financial Officer of the Company, setting forth the following information:
(i) with respect to each Effective Time Stockholder receiving Merger Consideration:
(A) the number of shares of Company Capital Stock of each class and series to be held by such Effective Time Stockholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis and including certificate numbers);
(B) the portion of the Merger Consideration payable to such Effective Time Stockholder after the deduction of all items described herein in respect of all of the shares of Company Capital Stock held by such Effective Time Stockholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis); which shall include (1) the amount of Initial Cash Payment to be received by such Effective Time Stockholder and (2) with respect to the Final Cash Payment, the pro rata distribution allocation to be received by such Effective Time Stockholder upon the final determination of the aggregate amount of such Merger Consideration.
(C) the aggregate Liquidation Preference with respect to each series of Company Capital Stock held by such Effective Time Stockholder;
(D) the Pro Rata Percentage of such Effective Time Stockholder; and
(E) the address of such Effective Time Stockholder where all Merger Consideration payable to such Effective Time Stockholder pursuant to this Agreement shall be mailed by Representative and, if known by the Company, wire transfer information for each such Effective Time Stockholder.
(ii) with respect to each Change in Control Payment Recipient:
(A) the aggregate Change in Control Payment payable to such Change in Control Payment Recipient out of the Initial Cash Payment; and
(B) other than with respect to Change in Control Payments to be processed through payroll, the address of such Change in Control Payment Recipient where all Change in Control Payments payable to such Change in Control Payments pursuant to this Agreement shall be mailed and, if known by the Company, wire transfer information for each such Change in Control Payment Recipient.
(b) The Company has prepared and delivered to Parent a flow of funds spreadsheet (the “Flow of Funds Spreadsheet” which together with the Payment Spreadsheet, shall constitute the “Consideration Spreadsheet”) setting which reflects (consistent with the information set forth all in the Preliminary Closing Financial Statements, the other portions of the following informationConsideration Spreadsheet, estimated as of the Closing Date: (a) correct names of all Company Securityholders Payoff Letters and their respective addresses, email addresses and taxpayer identification numbers as and any other Contracts applicable to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following payments): (i) the Aggregate Company Option Exercise Price Amount and amounts payable to third parties (including each such third party’s wire instructions) for the Aggregate Company Option Payment Amount as full payment of the Closing; (j) Transaction Expenses, including without limitation, the Aggregate Company Warrant Exercise Price Amount as of Change in Control Payments that remain outstanding at the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; Effective Time, and (lii) the Securityholders’ such other information as Parent reasonably requests.
(c) The Company acknowledges and agrees that Representative Amount. In no event will the aggregate amount payable by Parent set forth and its agents shall be entitled to rely on the Consideration Spreadsheet, or Spreadsheet for purposes of making any update thereto, exceed payments hereunder.
(d) The Company shall prepare in good faith and shall have delivered an estimated Consideration Spreadsheet to Parent at least three (3) business days prior to the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment AmountDate.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) The Company has prepared and delivered to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all ), certified by the Chief Financial Officer of the following informationCompany (solely in his capacity as such), estimated which sets forth, as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following:
(i) the Aggregate Company Option Exercise Price Amount name and last known address of all Stockholders and the Aggregate Company Option Payment Amount as number, class and series of the Closing; Capital Stock held by each Stockholder;
(jii) the Aggregate Company Warrant Exercise Price Amount as detailed calculations of the Closing Merger Consideration and the Aggregate Company Warrant Payment Amount; Closing Per Share Merger Consideration;
(kiii) each Stockholder’s Pro Rata Share (as a percentage interest), if any, of (A) the Closing Merger Consideration, (B) any Post-Closing Adjustment, (C) any returned Indemnification Escrow Amount; Funds, (D) any returned Integration Cost Escrow Funds and (lE) the Securityholders’ any returned Seller Representative Amount. In no event will the aggregate amount payable by Parent set forth Expense Funds.
(b) The parties agree that Parent, Distribution Agent and Merger Sub shall be entitled to rely on the Consideration Spreadsheet in making payments under Article II and Parent, Distribution Agent and Merger Sub shall not be responsible for the calculations or the determinations regarding such calculations in such Consideration Spreadsheet, or any update thereto, exceed . The parties acknowledge and agree that the Aggregate Closing Merger Consideration, as adjusted by from time to time pursuant to this Agreement and giving effect to amounts released to the Final Adjustment AmountPriority Preferred Stockholders from the Escrow Funds are intended to be allocated among the Priority Preferred Stockholders consistent with the Company Charter Documents and the DGCL, and the Stockholder Representative is hereby authorized to update and deliver to Parent, the Distribution Agent, the Escrow Agent and any other applicable Persons the Consideration Spreadsheet from time to time to effectuate the foregoing, as necessary in the Stockholder Representative’s good faith judgment to provide for an allocation consistent with the foregoing; provided, that, Parent, the Distribution Agent and the Surviving Corporation shall be entitled to rely on the updated Consideration Spreadsheet in making payments under Article II and Parent, the Distribution Agent and the Surviving Corporation shall not be responsible for the calculations or the determinations regarding such calculations in any updated Consideration Spreadsheet.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Merit Medical Systems Inc)
Consideration Spreadsheet. Attached hereto as Exhibit F is Not less than three Business Days prior to the Closing Date and in no event more than 10 Business Days prior to the Closing Date, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) ), certified, without personal liability, by the Chief Executive Officer and Chief Financial Officer of the Company (or, in each case, a Person acting in a similar capacity), setting forth all of the following information, estimated as of the Closing Date: for each Company Securityholder:
(a) correct names the number and class of all Company Securityholders Shares held by such Company Securityholder, together with the date(s) that such Company Shares were acquired by such Company Securityholder and their respective addressesthe cost basis (or bases, email addresses and taxpayer identification numbers as and to the extent available and reflected case may be) in the records respect of the Company; such Company Shares held by such Company Securityholder;
(b) the amount and type number of each Company Security Options held by each such Company Securityholder, Securityholder and the correct certificate numbers exercise price, the vested and unvested portion and the vesting schedule with respect to each such Company Security; Option;
(c) the amount number of Company Warrants held by such Company Securityholder and the Closing Cash Consideration payable exercise price with respect to each such Company Securityholder in connection with the Closing; Warrant;
(d) the Pro Rata Portion Estimated Closing Consideration payable to such Company Securityholder pursuant to, and in accordance with the methodologies set forth in, the Plan of Arrangement, including, in each Company Securityholder; case, the amount to be withheld from such payments in accordance with this Agreement and the Plan of Arrangement;
(e) the manner in which any distribution portion of the Escrow Amount will be distributed among the Indemnity Proceeds allocated to such Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculatedShareholder; and
(f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature Pro Rata Percentage of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; Company Securityholder;
(g) the contact information, including email address and mailing address for such Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; Securityholder;
(h) the aggregate amount taxpayer identification number of such Company Change in Control PaymentsSecurityholder (or such other identification information as reasonably requested by Parent, along with a breakdown by Person entitled to receive such payment; as social insurance number or social security number);
(i) whether such Company Securityholder holds his, her or its Company Shares, Company Options and Company Warrants, as applicable, as an individual for his, her or its own benefit, an agent, custodian or trustee for another Person(s) (and in any case specifying such other Person(s)), a joint tenant (and specifying the Aggregate Company Option Exercise Price Amount other joint tenant(s)), a tenant in comment or by the entirety (and specifying the Aggregate Company Option Payment Amount other tenant(s)), community property, in a registered account, as of the Closinga corporation or as a partnership; and
(j) the Aggregate Company Warrant Exercise Price Amount as portion of the Closing and Contingent Amount that would be allocable to such Selling Shareholder if Actual Net Revenue is equal to or greater than the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment AmountNet Revenue Target.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company shall prepare and deliver to Purchaser, no less than three (3) Business Days prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”) setting in the form agreed to by the Company and Purchaser, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information, estimated as of the Closing Date: (a) correct the names of all the Company Securityholders Holders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type number of each shares of Company Security Common Stock held by each by, or subject to the Company Options held by, such Company Securityholder, and the correct certificate numbers with respect to each such Company SecurityPersons; (c) the amount exercise price per share of the Closing Cash Consideration payable to each Company Securityholder in connection with the ClosingOption; (d) the Pro Rata Portion of each Company Securityholder; Fully Diluted Number, (e) the manner in which any distribution calculation of the Escrow Amount will be distributed among Company Cash and Company Debt (including an itemized list of each item of Company Debt indicating the Company Securityholders if not in accordance with Person to whom such expense is owed), the Pro Rata PortionClosing Merger Consideration, and the manner in which each such distribution will be calculatedClosing Common Stock Per Share Amount; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Transactional Expense indicating the general nature of such expense (e.g.i.e., legal, accounting, etc.), ) and the Person to whom such expense is owed) and the wire transfer information of each such Person); (g) the Company Debt Payoff Amount, along with a breakdown by lender, aggregate amount of cash, based on the Closing Merger Consideration, issuable to each Company Debt and Holder in exchange for the wire transfer information of each lenderCompany Common Stock held by such Persons; (h) the aggregate amount sum of the Closing Company Change Option Amounts payable to each holder of a Company Option in Control Payments, along with a breakdown exchange for the Company Options held by Person entitled to receive such paymentPersons; and (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as amount of the change in control payment to be received by each individual identified in Schedule 2.2(b)(i)(c) pursuant to the terms and conditions of a Change in Control Agreement to be entered into by the Company and such individual at or prior to the Closing; . The Company agrees that the aggregate amount of all of the change of control payments to be set forth in the Consideration Spreadsheet shall be not less than $7,000,000 and shall not exceed the amount which would result in the amount of the Closing Merger Consideration being zero. Unless otherwise provided herein, all payments from Purchaser to or for the benefit of the Company Holders, when and if required to be made in accordance with this Agreement, shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing and set forth in the Consideration Spreadsheet. In the event that any holder of Company Options exercises, in whole or in part, Company Options after the Company’s delivery of the Consideration Spreadsheet to the Purchaser, but before the Closing, the Company shall promptly deliver to the Purchaser (jno later than the Closing) an updated version of the Aggregate Company Warrant Exercise Price Amount Consideration Spreadsheet (dated as of the Closing Date) which takes into account the exercise of such Company Option. Notwithstanding anything to the contrary in this Agreement, from and after the Aggregate Closing, neither Company Warrant Payment Amount; (k) nor Purchaser nor any of their respective Affiliates shall be bound by any of the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent information set forth on in the Consideration Spreadsheet, or any update thereto, exceed Spreadsheet to the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amountextent that such information is incorrect.
Appears in 1 contract
Sources: Merger Agreement (Vangent, Inc.)
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least five (5) Business Days before the Closing and concurrently with the delivery of the Estimated Closing Working Capital Statement, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all ), certified by the Chief Executive Officer of the following informationCompany, estimated which shall set forth, as of the Closing Date: (a) correct names of all Company Securityholders Date and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected in Effective Time, the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following:
(i) the Aggregate Company Option Exercise Price Amount names and addresses of all Stockholders and the Aggregate number of Company Option Payment Amount as Stock held by such Persons;
(ii) the names and addresses of all Optionholders and Warrantholders, together with the number of Shares subject to Options or Outstanding Warrants held by such Optionholders or Warrantholders, the grant date, exercise price and vesting schedule for such Options;
(iii) detailed calculations of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, Fully Diluted Share Number, the Preferred Stock Preference, the Per Share Preference and Closing Per Share Merger Consideration;
(iv) the portion of the Closing Merger Consideration (as adjusted by a percentage interest and the Final Adjustment Amountinterest in dollar terms and number of Merger Shares) each Stockholder, Optionholder and Warrantholder is to receive, after taking into consideration the repayment of the Option Exercise Notes, if any;
(v) each Stockholder's, Optionholder's and Warrantholder’s Pro Rata Share (as a percentage interest and the interest in dollar terms) of the amount to be contributed to the Escrow Fund;
(vi) each Stockholder's, Optionholder's and Warrantholder’s Pro Rata Share (as a percentage interest) of the Earn-Out Payments;
(vii) each Stockholder's, Optionholder's and Warrantholder’s Pro Rata Share (as a percentage interest) of the MIST Payments; and
(viii) each Stockholder's, Optionholder's and Warrantholder’s Pro Rata Share (as a percentage interest) of the MIST Shares.
(b) The parties agree that Parent and Merger Sub shall be entitled to rely on the Consideration Spreadsheet in making payments under Article II and Parent and Merger Sub shall not be responsible for the calculations or the determinations regarding such calculations in such Consideration Spreadsheet.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least three (3) Business Days before the Closing, the Company shall prepare and deliver to Parent a spreadsheet (the “Estimated Merger Consideration Spreadsheet”) setting forth all ), certified by the Chief Executive Officer of the following informationCompany, estimated which shall set forth, as of the Closing Date: (a) correct names of all Company Securityholders Date and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected in Effective Date, the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following:
(i) the Aggregate Company Option Exercise Price Amount names and last known contact information of all Equityholders and the Aggregate Company Option Payment Amount number of Shares held by such Persons;
(ii) estimated calculations of the Merger Consideration due at Closing, including any estimated adjustments pursuant to Section 3.09 (the “Closing Merger Consideration”), Fully Diluted Share Number and the applicable Merger Consideration to be delivered per Share at Closing; and
(iii) an estimate of each Stockholder’s Pro Rata Share (as a percentage interest and the interest in dollar terms using the most recent closing price of Parent’s Common Stock as listed on Nasdaq as of the Closing; date the Company prepares the Estimated Consideration Spreadsheet) of the Closing Merger Consideration.
(jb) At such time the Aggregate Closing Price is definitely known by the Parent and the Company, the Company Warrant Exercise Price Amount shall begin preparing and shall deliver to Parent, as soon as practically possible, an update and final spreadsheet (the “Final Merger Consideration Spreadsheet”), certified by the Chief Executive Officer of the Company, which shall set forth, as of the Closing Date and immediately prior to the Aggregate Company Warrant Payment Amount; (k) Effective Date, all of the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent items set forth in the Estimated Merger Consideration Spreadsheet.
(c) The parties agree that Parent and Merger Sub shall be entitled to rely on the Final Merger Consideration Spreadsheet in making payments this Article III and Parent and Merger Sub shall not be responsible for the calculations or the determinations regarding such calculations in such Final Merger Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to Parent a form closing consideration spreadsheet (the “Consideration Spreadsheet”) setting forth all of ), prepared by the following informationCompany in good faith and detailing, estimated in each case, as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected Effective Time, based, when relevant, on assumptions reasonably acceptable to Parent which are described in detail in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; Spreadsheet:
(i) the Aggregate name and address of record of each Company Option Exercise Price Amount Stockholder and the number and class, type or series of shares of Company Capital Stock held by each;
(ii) the number of Aggregate Fully Diluted Company Option Payment Amount as Shares;
(iii) a detailed calculation of the Closing; Per Share Merger Consideration (jin each case, without regard to withholding);
(iv) the Aggregate Company Warrant Exercise Price Amount as a detailed calculation of the Closing Cash;
(v) a detailed calculation of the Closing Indebtedness;
(vi) for each Company Securityholder, its share of the Per Share Merger Consideration based on its Pro Rata Portion; and
(vii) any explanatory or supporting information, including calculations, as Parent may reasonably request.
(b) The contents of the Consideration Spreadsheet delivered hereunder shall be subject to reasonable review and comment by Parent, but the Aggregate Company Warrant Payment Amount; (k) shall, in all events, remain solely responsible for the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on contents of the Consideration Spreadsheet. Under no circumstances shall Parent or Merger Sub be responsible for the calculations or the determinations regarding such calculations in the Consideration Spreadsheet so long as such calculations were not made by Parent and the Parties agree that Parent shall be entitled to rely on the most recently delivered Consideration Spreadsheet in making payments under this ARTICLE III.
(c) Nothing contained in this Section 3.4 or in the Consideration Spreadsheet shall be construed or deemed to (i) modify the Company’s obligations to obtain Parent’s prior written consent to the issuance of any securities pursuant to Section 6.1(a)(xix); or (ii) alter or amend the definition of Closing Cash, Closing Indebtedness, or any update thereto, exceed the Aggregate Closing Per Share Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Sources: Business Combination Agreement (Altitude Acquisition Corp.)
Consideration Spreadsheet. Attached hereto as Exhibit F is The Company will prepare and deliver to Purchaser, no less than three (3) Business Days prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”) setting in the form agreed to by the Company and Purchaser, which spreadsheet will be dated as of the Closing Date and will set forth all of the following 16 Confidential Treatment Requested information, estimated as applicable and as of the Closing Date: (a) correct names of all Company Securityholders and their respective addressesthe Fully-Diluted Number, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type calculation of each Company Security held by each such Company Securityholderthe Estimated Adjustment Amount, the Merger Consideration, the Residual Merger Consideration and the correct certificate numbers with respect to each such Company SecurityCommon Stock Per Share Amount; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g.i.e., legal, investment banking, accounting, etc.), ) and the Person to whom such expense is owed); (d) and the wire transfer information name of each such PersonCompany Holder and its, his or her address and taxpayer identification number as reflected in the records of the Company; (e) the type and number of shares of Company Preferred Stock held by each Company Holder; (f) the number of shares of Company Common Stock held by each Company Holder; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount number of shares of Company Debt Common Stock subject to each Company Option held by each Company Holder and the wire transfer information exercise price of each lendersuch Company Option; (h) the number of shares of Company Common Stock subject to each Company Series Common Stock Warrant held by each Company Holder and the exercise price of each such Company Common Stock Warrant; (i) the aggregate Series Preferred Per Share Preference Amount and Series Preferred Per Share Accrued Dividend Amount payable to each Company Holder in exchange for shares of Company Series A Preferred Stock, as the case may be, held by such Company Holder; (j) the aggregate amount of cash payable to each Company Holder in exchange for the shares of Company Capital Stock held by such Company Holder (including the amount of cash required to be deducted and withheld from such Company Holder for Taxes); (k) the amount of cash payable to each Company Holder in exchange for Company Options held by such Company Holder (including the amount of cash required to be deducted and withheld from such Company Holder for Taxes and the amount of Tax payable by the Company in connection with such Company Option); (l) the amount of cash payable to each Company Holder in exchange for Company Common Stock Warrants held by such Company Holder (including the amount of cash required to be deducted and withheld from such Company Holder for Taxes); (m) the Company Holder Percentage Interest of each Company Holder in the Escrow Fund; (n) the Company Holder Percentage Interest of each Company Holder; (o) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person each individual entitled to receive such payment; (i) a portion of the Aggregate Company Option Exercise Price Amount Change in Control Payments and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; amount thereof, and (lp) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on of the Consideration SpreadsheetRussian Signing Bonuses, or any update thereto, exceed each individual entitled to a portion of the Aggregate Closing Merger Consideration, as adjusted by Russian Signing Bonuses and the Final Adjustment Amountamount thereof.
Appears in 1 contract
Sources: Agreement and Plan of Merger
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least three (3) Business Days before the Closing and concurrently with the delivery of the Estimated Closing Statement, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all in the form attached as Exhibit E, certified by the Chief Executive Officer of the following informationCompany, estimated which shall set forth, as of the Closing Date: Date and immediately prior to Closing, the following information:
(ai) correct names the names, addresses and email addresses of all Equityholders and the number of Company Securityholders Interests held by such Equityholders, and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records numbers;
(ii) detailed calculations of the Company; (b) Merger Consideration and Cash Closing Payment, taking into account the amount amounts of Estimated Closing Date Debt, Estimated Closing Transaction Expenses, and type of each Company Security held by each such Company SecurityholderEstimated Cash, and the correct certificate numbers with respect to each such Company SecurityCapital Payments Amount; and
(ciii) the amount of the Cash Closing Cash Consideration Payment payable at Closing to each Company Securityholder in connection with Equityholder, the principal amount of the Note to be issued to each Equityholder, the number of Consideration Shares to be issued at Closing to each Equityholder and each Equityholder’s respective Percentage Share.
(b) The Parties acknowledge and agree that the Equityholders shall be solely responsible for the calculation of the consideration payable pursuant to Section 2.07 and that Parent and its respective Affiliates (including, Sub and following the Closing; , the Company) shall be entitled to rely on the Consideration Spreadsheet in making payments under Section 2.07 and Parent and its Affiliates (dincluding, Sub and following the Closing, the Company) shall not be responsible or have any liability whatsoever for the Pro Rata Portion of each Company Securityholder; calculations, allocations or the determinations (e) or any other matter whatsoever other than for the manner in which any distribution payment of the Escrow Amount will be distributed among the Company Securityholders if not amounts set forth therein in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (fterms of this Agreement) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on regarding the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Closing Merger Consideration, as adjusted by the Final Adjustment Amount.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto Concurrently with the execution and delivery of this Agreement, the Company shall deliver to the Acquirer a spreadsheet (the “Estimated Consideration Spreadsheet”), together with reasonable supporting documentation as Exhibit F requested by the Acquirer, certified by the Chief Executive Officer of the Company, setting forth all of the following information (in addition to the other required data and information specified therein) in reasonable detail, as of the Closing Date and immediately prior to the Effective Time: for each of the Converting Holders, the number and kind of shares of Company Capital Stock or subject to the Company Options held by such Converting Holder, or the number of Company Shares underlying each Company Option or Company Warrant held by such Company Securityholders (and in the case of outstanding shares, the respective certificate numbers of such shares), the exercise price per share in effect for each Company Option or Company Warrant, as applicable, the Merger Consideration (including the Per Share Merger Consideration breakdown and a separation between the Aggregate Stock Consideration and Aggregate Cash Consideration), the Excess Holdback Amount, Estimated Closing Cash, Estimated Closing Indebtedness, Estimated Closing Transaction Expenses, the Fully Diluted Company Capital Stock, Indemnity Escrow Amount, the Adjustment Escrow Amount, the Expense Fund Amount, the Indemnity Pro Rata Share, Adjustment Escrow Pro Rata Share and the Pro Rata Share, whether or not such Converting Holder is a spreadsheet Non-Accredited Company Stockholder, with respect to each Holdback Participant its applicable Holdback Amount (separated between the Aggregate Stock Consideration and Aggregate Cash Consideration), with respect to each Company Securityholder its applicable Adjustment Escrow Per Share Amount, Indemnity Escrow Per Share Amount and Expense Fund Per Share Amount (in each case, if applicable), and the calculation of the Cash Consideration Percentage and the Stock Consideration Percentage. The Estimated Consideration Spreadsheet shall also set forth, for any shares of Company Capital Stock acquired upon the exercise of a Company Option that was an “incentive stock option” within the meaning of Section 422 of the Code, whether the disposition of such Company Capital Stock in accordance with this Agreement constitutes a disqualifying disposition (within the meaning of Section 421(b) of the Code) resulting in a Tax reporting obligation with respect thereto. The Estimated Consideration Spreadsheet shall also set forth, for each Company Option, whether the Company is required to withhold employment Taxes with respect to the proceeds in respect of such Company Option under this Agreement. At least five (5) Business Days prior to Closing, the Company shall deliver to the Acquirer the final Consideration Spreadsheet including the same information as the Estimated Consideration Spreadsheet and certified by the Chief Executive Officer of the Company (the “Consideration Spreadsheet”) setting forth all ); provided however that the calculation of the following informationCash Consideration Percentage and the Stock Consideration Percentage shall not be revised or updated, estimated as and the calculation of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected such percentages in the records Estimated Consideration Spreadsheet shall be final and binding. The information contained in the Consideration Spreadsheet is and shall be solely the responsibility of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect Acquirer and Merger Sub shall be entitled to each rely exclusively on the allocation and calculations contained in the Consideration Spreadsheet in making payments under Article 1 and Acquirer and Merger Sub shall not be responsible or liable in any way for verifying the information, calculations or the determinations regarding such Company Security; (c) calculations in such Consideration Spreadsheet. At the amount written request of the Closing Cash Consideration payable to each Company Securityholder in connection with Acquirer, after the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution delivery of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, Estimated Consideration Spreadsheet and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, the Company shall make its Representatives available to discuss and answer questions with respect to the determination of the amounts set forth in the Estimated Consideration Spreadsheet and the Consideration Spreadsheet, and the Company shall consider in good faith any comments or any update thereto, exceed revisions the Aggregate Closing Merger Consideration, as adjusted by Acquirer may have to the Final Adjustment AmountEstimated Consideration Spreadsheet and the Consideration Spreadsheet.
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) At least two (2) Business Days before the Closing and concurrently with the calculation of the Estimated Closing Net Working Capital under Section 2.16(c) hereof, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all ), certified by the chief executive officer of the following informationCompany, estimated which shall set forth, as of the Closing Date: (a) correct names of all Company Securityholders Date and their respective addresses, email addresses and taxpayer identification numbers as and immediately prior to the extent available and reflected in Effective Time, the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; following:
(i) the Aggregate Company Option Exercise Price Amount names and addresses of all Shareholders and the Aggregate Company Option Payment Amount as number Shares (listed separately by class and series) held by such Persons;
(ii) the names and addresses of all Optionholders, together with the number of Shares (listed by class and series of capital stock) subject to Options held by such Optionholders, the grant date, exercise price and vesting schedule for such Options;
(iii) the names and addresses of all Warrantholders, together with the number of Shares (listed by class and series of capital stock) subject to Warrants held by such Warrantholders, the grant date, exercise price and vesting schedule for such Warrants;
(iv) detailed calculations of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate Estimated Closing Merger Consideration, each of the Holdback Amounts, the Series 2 Preferred Share Number, the Closing Series 2 Preferred Per Share Merger Consideration, and the amounts payable, if any, to each Holder pursuant to Article II in respect of their respective Shares, Options and Warrants;
(v) each Indemnification Shareholder’s Allocable Portion (expressed as adjusted by a percentage);
(vi) each Shareholder’s Distribution Percentage; and
(vii) the applicable wire transfer instructions (or other payment directions) for each holder of Series 2 Preferred.
(b) The Company shall prepare the Consideration Spreadsheet consistent with the amounts each Holder would receive if all of the payments were made on the Closing Date pursuant to the liquidation priorities set forth in the Company Organizational Documents and consistent with this Agreement, the Stock Option Plans, any Applicable Option Documents (including taking into account the exercise price associated with any Options), the Warrants and any agreements relating to the Warrants. Parent, Merger Sub, the Surviving Corporation and each of their respective Affiliates shall be entitled to rely on the Consideration Spreadsheet in making payments under Article II, and none of Parent, Merger Sub, the Surviving Corporation, or any of their respective Affiliates shall be responsible for the calculations or the determinations regarding such calculations in such Consideration Spreadsheet. None of Parent, Merger Sub, the Surviving Corporation or any of their respective Affiliates or any other Parent Indemnified Party shall have any liability or obligation to any Person, including the Holders, for any Losses arising from or relating to errors, omissions or inaccuracies in the calculations of the portion of the Final Adjustment AmountClosing Merger Consideration payable to any Holder or any other errors, omissions or inaccuracy in the Consideration Spreadsheet.
Appears in 1 contract
Sources: Merger Agreement (Realpage Inc)
Consideration Spreadsheet. Attached hereto as Exhibit F is At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a Merger Consideration spreadsheet (the “Consideration Spreadsheet”) setting forth all ), which Consideration Spreadsheet shall be certified as complete and correct by the chief executive officer of the following information, estimated Company as of the Closing Date: Date and which shall include, among other things, as of the Closing, (ai) correct names of all each Company Securityholders Stockholder and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount number and type of each Company Security shares of capital stock held by each such Company SecurityholderStockholder, and the correct respective certificate numbers with respect numbers, the date of acquisition of such shares, the aggregate number of Closing Merger Shares issuable to each such Company Security; (c) Stockholder, the amount maximum number of Holdback Shares issuable to such Company Stockholder, the Closing Cash maximum aggregate Milestone Consideration issuable and payable to each such Company Securityholder in connection with the Closing; (d) Stockholder, the Pro Rata Portion of Percentage applicable to each Company Securityholder; (e) Stockholder, and whether or not, to the manner in which any distribution knowledge of the Escrow Amount will be distributed among Company, such Company Stockholder is an Accredited Investor or a Non-Accredited Investor, (ii) each Carve-Out Plan Participant, the Company Securityholders if not in accordance with number of Carve-out Closing Merger Shares issuable to such Carve-out Plan Participant, the Pro Rata Portion, maximum number of Holdback Shares issuable to such Carve-out Plan Participant and the manner in which maximum aggregate Milestone Consideration issuable and payable to each such distribution will be calculated; (f) Carve-out Plan Participant and whether or not, to the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as knowledge of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow AmountCompany, such Carve-out Plan Participant is an Accredited Investor or a Non-Accredited Investor; and (liii) each Other Consideration Recipient (other than a Carve-Out Plan Participant), the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on the Consideration Spreadsheet, or any update thereto, exceed the Aggregate number of Service Provider Closing Merger ConsiderationShares issuable to such Other Consideration Recipient, as adjusted by the Final Adjustment Amountmaximum number of Service Provider Holdback Shares issuable to such Other Consideration Recipient and the maximum aggregate Milestone Consideration issuable and payable to each such Other Consideration Recipient and whether or not, to the knowledge of the Company, such Other Consideration Recipient is an Accredited Investor or a Non-Accredited Investor.
Appears in 1 contract
Sources: Merger Agreement (Capnia, Inc.)
Consideration Spreadsheet. Attached hereto as Exhibit F is (a) Before the Closing, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”) setting forth all of the following information), estimated which shall set forth, as of immediately prior to the Closing Date: Effective Time, the following:
(ai) correct the names and addresses of all Company Securityholders Unitholders and their respective addressesthat portion of the Acquisition Shares, email addresses Parent Common Stock and taxpayer identification numbers as and the Parent Warrants to be delivered (A) to each Company Unitholder following the Closing in accordance with Section 1.10(b) or (B) to the extent available Escrow Agent on behalf of any Company Unitholder at the Closing in accordance with Section 1.10(c);
(ii) each Company Unitholder’s (A) pro rata share of indemnification obligations under Article VII (which, for the avoidance of doubt, shall be measured in accordance with such Company Unitholder’s actual receipt of Merger Consideration in proportion to the aggregate Merger Consideration), and reflected in the records (B) pro rata share of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, Indemnity Escrow Fund and the correct certificate numbers Consent Escrow Fund (which shall be calculated in accordance with respect the Company’s Operating Agreement) (the applicable pro rata share pursuant to each such clause (A) or (B) is referred to herein as a Company SecurityUnitholder’s “Pro Rata Share”); and
(ciii) the amount of the Closing Cash Merger Consideration payable to each be set aside as a reserve to pay fees, costs and expenses that the Unitholders’ Representative may incur pursuant to Article VIII.
(b) The Parties, including the Company Securityholder Unitholders signatory to a Joinder Agreement, acknowledge and agree that Parent and Merger Sub shall be entitled to rely on the Consideration Spreadsheet for making payments of the Merger Consideration and the Indemnity Escrow Amount, if any. In addition, Parent and Merger Sub shall not be responsible for the calculations or the determinations regarding the calculations in connection with the Closing; (d) the Consideration Spreadsheet. In addition, for purposes of determining a Company Unitholder’s applicable Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will Share, Parent shall be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the Aggregate Company Option Exercise Price Amount and the Aggregate Company Option Payment Amount as of the Closing; (j) the Aggregate Company Warrant Exercise Price Amount as of the Closing and the Aggregate Company Warrant Payment Amount; (k) the Escrow Amount; and (l) the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth rely on the Consideration Spreadsheet.
(c) In connection with the delivery of the Consideration Spreadsheet, or any update theretothe Company will deliver an updated Cap Table to Parent, exceed updated to reflect the Aggregate Closing Merger Consideration, outstanding membership interests as adjusted by of immediately prior to the Final Adjustment AmountEffective Time (the “Updated Cap Table”).
Appears in 1 contract
Consideration Spreadsheet. Attached hereto as Exhibit F is At least five (5) Business Days prior to the Closing Date, CSC shall deliver to Parent a spreadsheet certificate (the “Consideration Spreadsheet”) setting forth all signed by the CSC Representative (on behalf of the following informationCSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, estimated in each case as of the Closing, of:
(a) the aggregate CSC Expenses as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and the wire instructions for each Person to the extent available and reflected in the records whom any portion of the Company; (b) the amount CSC Expenses shall be due and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; ;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of each Company Securityholder; such holder, and (evii) the manner in which any distribution whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the wire transfer information of each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; Code;
(i) the Aggregate Company Option Exercise Price identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the Aggregate Company Option Payment CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the Closing; payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (jvi) the Aggregate Company Warrant Exercise Price Amount as Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the Aggregate Company Warrant Payment Amount; CSC Charter as a result of the First Merger, (kv) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Escrow Amount; and (l) Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the Securityholders’ Representative Amount. In no event will the aggregate amount payable by Parent set forth on preparation of the Consideration Spreadsheet, or any update theretowhich Consideration Spreadsheet, exceed when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the Aggregate definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Merger Consideration, as adjusted by the Final Adjustment AmountDate shall be consistent in form with such estimate (in all material respects).
Appears in 1 contract
Sources: Merger Agreement (NeoStem, Inc.)