Conversion of Interests. At the Effective Time, by virtue of the Merger and without any action on the part of Carbon, Oxygen, Merger Sub or the holder of any of the following securities: (a) Subject to Section 2.2(f), each Oxygen Common Interest that is issued and outstanding immediately prior to the Effective Time (other than Cancelled Interests or any Oxygen Interest Award) shall be converted into the right to receive (i) a number of shares of Carbon Common Stock equal to the Per Interest Stock Consideration and (ii) an amount of cash equal to the Per Interest Cash Consideration, in each case as determined pursuant to Section 1.7 (the consideration referred to in clauses (i) and (ii) being collectively referred to as the “Per Common Interest Merger Consideration”; provided that each Oxygen Common Interest (other STRICTLY CONFIDENTIAL EXECUTION than any Oxygen Interest Award) that is owned by a Non-Accredited Investor immediately prior to the Effective Time shall instead be converted into the right to receive an amount of cash, without interest, equal to the Merger Consideration Per Fully Diluted Interest (the “Non-Accredited Investor Common Interest Consideration”) and the right to receive a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively. (b) At the Effective Time, each award of Oxygen Common Interests that is issued and outstanding but unvested as of immediately prior to the Effective Time (an “Oxygen Interest Award”), subject to receipt of a duly executed Holder Acknowledgement and Investor Questionnaire, shall be converted into an award (a “Carbon Stock Award”) with respect to a number of unvested restricted shares of Carbon Common Stock (rounded to the nearest whole share) that is equal to the product of (i) the number of Oxygen Common Interests subject to such Oxygen Interest Award, multiplied by (ii) the quotient of (A) the Merger Consideration Per Fully Diluted Interest, divided by (B) the Carbon Signing Price; provided that each Oxygen Interest Award that is held by a Non-Accredited Investor and is issued and outstanding but unvested as of immediately prior to the Effective Time shall be converted into an award (a “Carbon Cash Award”) with respect to an amount of cash, without interest, equal to the Merger Consideration Per Fully Diluted Interest. The vesting schedule and all other material terms of each Carbon Stock Award and Carbon Cash Award shall otherwise remain substantially the same as those that were applicable to the corresponding Oxygen Interest Award (to the extent relevant following the Effective Time) and shall have such other terms applicable to awards in respect of Carbon Common Stock as are consistent with the terms of the Carbon Long-Term Incentive Plan, as in effect from time to time. (c) At the Effective Time, all Oxygen Common Interests that are owned, directly or indirectly, by Oxygen or any of its wholly owned Subsidiaries (the “Cancelled Interests”) shall be cancelled and shall cease to exist and no Carbon Common Stock or other consideration shall be delivered in exchange therefor. (d) All of the Oxygen Common Interests converted into the right to receive the Per Common Interest Merger Consideration or the Non-Accredited Investor Common Interest Consideration pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and shall thereafter represent only the right to receive (x) the Per Common Interest Merger Consideration and cash in lieu of fractional shares or the Non-Accredited Investor Common Interest Consideration, as applicable, which the Oxygen Common Interests have been converted into the right to receive pursuant to this Section 1.4 and Section 2.2(f), without any interest thereon, and (y) a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively. All of the awards of Oxygen Common Interests converted into Carbon Stock Awards or Carbon Cash Awards, as applicable, pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and shall thereafter represent only the right to receive a Carbon Stock Award or Carbon Cash Award, as applicable, and the right to receive a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively; provided that any such amounts that are attributable to Oxygen Interest Awards shall only be STRICTLY CONFIDENTIAL EXECUTION paid when (and if) the corresponding Carbon Stock Award vests, and shall be forfeited if the corresponding Carbon Stock Award is forfeited. In the event any amounts attributable to Oxygen Interests Awards are forfeited, such amounts shall be distributed reasonably promptly thereafter to the former holders of vested Oxygen Common Interests, Oxygen Interest Awards and In-the-Money Oxygen Options, based upon such holder’s then-applicable Holdback Percentage. (e) Each limited liability company interest of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one limited liability company interest of the Surviving Company. (f) At or prior to the Effective Time, Oxygen, the Board of Directors of Oxygen and its compensation committee, as applicable, shall adopt any resolutions and take any actions that are reasonably necessary to effectuate the provisions of Section 1.4(b) and to ensure that, notwithstanding anything to the contrary, following the Effective Time, no service provider of Oxygen and its Subsidiaries shall have any right to acquire any securities of Oxygen, Carbon or any Subsidiary thereof or to receive any payment, right or benefit with respect to any award previously granted in respect of securities of Oxygen, except the right to receive the consideration as provided in Sections 1.4(b) or Section 1.6 in their capacity as Oxygen Holders. (g) Notwithstanding anything to the contrary set forth in Section 1.6 of the Merger Agreement or any other provision of the Merger Agreement, nothing in this Merger Agreement is intended to, or shall, terminate or otherwise affect the rights of any holder of options to purchase Common Interests listed on Section 3.2(a)(i) of the Oxygen Disclosure Schedules to receive (i) any Dividend Equivalent Payments as set forth on Section 3.11(a) of the Oxygen Disclosure Schedules or (ii) any payments or benefits under Section 5.07 of the Oxygen LLC Agreement, in each case, with respect to such holder’s options to purchase Common Interests listed on Section 3.2(a)(i) of the Oxygen Disclosure Schedules, provided that, for the avoidance of doubt, in no event will there be any payments or benefits due under Section 5.07 of the Oxygen LLC Agreement in respect of the contingent payment from the Holdback Amount or the Holder Expense Fund.
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Sources: Merger Agreement (Cit Group Inc)
Conversion of Interests. At Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger Merger, and without any action on of the part of Carbon, Oxygen, COESfx and/or the Merger Sub or the holder of any of the following securitiesSubsidiary:
(a) Subject All of the (i) shares of COESfx Common Stock ("COESfx Common Stock") and (ii) all stock options, warrants, convertible debt, other convertible securities, or other rights to Section 2.2(f)acquire COESfx Common Stock at an exercise or conversion, each Oxygen as applicable, price of less than $0.20 per share of COESfx Common Interest that is Stock (collectively the “Non-Exempt COESfx Convertible Securities”) issued and outstanding immediately prior to the Effective Time (other than Cancelled Interests or any Oxygen Interest Award) shall be converted into the right to receive (i) a number of shares of Carbon except for COESfx Common Stock equal to the Per Interest Stock Consideration and (ii) an amount of cash equal to the Per Interest Cash Consideration, in each case as determined pursuant to Section 1.7 (the consideration referred to in clauses (i) and (ii) being collectively referred to as the “Per Common Interest Merger Consideration”; provided that each Oxygen Common Interest (other STRICTLY CONFIDENTIAL EXECUTION than any Oxygen Interest Award) that is owned by a Non-Accredited Investor immediately prior to the Effective Time shall instead dissenting shareholders of COESfx) will be converted into the right to receive an amount aggregate of cash356,562,688 shares common stock of SFG, without interestpar value $0.001 per share ("SFG Shares"). The SFG Shares into which shares of COESfx Common Stock, equal to whether owned presently or receivable after the Closing upon exercise or conversion, as appropriate, of the Non-Exempt COESfx Convertible Securities, are converted as a result of the Merger Consideration Per Fully Diluted Interest (are referred to herein as the “Non-Accredited Investor "Merger Consideration". As a result of the Merger, each share of COESfx Common Interest Consideration”) and Stock will be converted into the right to receive a contingent payment from 8.0808554 SFG Shares. SFG has the Holdback Amount authorization to issue only 100,000,000 shares of common stock of which 5,513,856 presently shown as owed and outstanding. Accordingly SFG will be required to amend its Certificate of Corporation as soon as practicable after the Closing, to allow the issuance of all of the Merger Consideration. Accordingly at the Effective Time, COESfx Shareholders shall be issued 94,486,144 SFG shares and the Holder Expense Fund pursuant irrevocable right to and subject to receive an additional 262,076,544 SFG Shares (“Irrevocable Rights”) immediately upon the terms and conditions filing of Section 6.17 and Section 6.18, respectively.the Amended COI
(b) At All Non-Exempt COESfx Convertible Securities and stock options, warrants, convertible debt, other convertible securities or other rights to acquire COESfx Common Stock at an exercise or conversion, as applicable, price of no less than $0.20 per share (collectively, the “COES Convertible Securities”) outstanding at the Effective Time, each award whether or not vested (all of Oxygen Common Interests that is issued and which are listed on Schedule 1.3(b) hereto), shall remain outstanding but unvested as of immediately prior to following the Effective Time (an “Oxygen Interest Award”), subject to receipt of a duly executed Holder Acknowledgement and Investor Questionnaire, but shall be converted assumed by SFG. Non-Exempt COESfx Convertible Securities and COESfx Convertible Securities shall continue to have, and be subject to, the same terms and conditions as set forth in the documents underlying such Non-Exempt COESfx Convertible Securities and COESfx Convertible Securities. Non-Exempt COESfx Convertible Securities will be convertible into an award (a “Carbon Stock Award”) with respect to a number SFG Shares at the rate of unvested restricted shares 8.0808554 SFG Shares for each share of Carbon COESfx Common Stock (rounded to which they would otherwise be entitled, which shares shall be issued from a reserve set aside for such purpose from the Merger Consideration, as described in Schedule 1.3(b). COESfx Convertible Securities will be exercisable or convertible, as appropriate, as set forth in the underlying documents and shall be an obligation of SFG without regard to the nearest whole share) that is equal to the product of (i) the number of Oxygen Common Interests subject to such Oxygen Interest Award, multiplied by (ii) the quotient of (A) reserve set aside from the Merger Consideration Per Fully Diluted Interest, divided by (B) the Carbon Signing Price; provided that each Oxygen Interest Award that is held by a Non-Accredited Investor and is issued and outstanding but unvested as of immediately prior to the Effective Time shall be converted into an award (a “Carbon Cash Award”) with respect to an amount of cash, without interest, equal to the Merger Consideration Per Fully Diluted Interest. The vesting schedule and all other material terms of each Carbon Stock Award and Carbon Cash Award shall otherwise remain substantially the same as those that were applicable to the corresponding Oxygen Interest Award (to the extent relevant following the Effective Time) and shall have such other terms applicable to awards in respect of Carbon Common Stock as are consistent with the terms of the Carbon Long-Term Incentive Plan, as in effect from time to timeConsideration.
(c) At the Effective Timetime, all Oxygen Common Interests that are owned, directly irrevocable rights to receive 5,513,856 SFG Shares shall be issued to Concord Management Associates LLC or indirectly, by Oxygen or any of its wholly owned Subsidiaries designee(s) (the “Cancelled InterestsConcord”) shall as consideration for its contributions in conjunction with the Merger. These shares will be cancelled issued to Concord upon the filing of the Amended COI and shall cease will be subject to exist and no Carbon Common Stock or other consideration shall be delivered in exchange thereforthe Reverse Split.
(d) All of the Oxygen Common Interests converted into the right to receive the Per Common Interest Merger Consideration or the Non-Accredited Investor Common Interest Consideration pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of At the Effective Time, and one hundred (100) shares of COESfx Common Stock shall thereafter represent only the right be issued to receive (x) the Per Common Interest Merger Consideration and cash SFG to result in lieu of fractional shares or the Non-Accredited Investor Common Interest Consideration, as applicable, which the Oxygen Common Interests have been converted into the right to receive pursuant to this Section 1.4 and Section 2.2(f), without any interest thereon, and (y) a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively. All SFG owing 100% of the awards issued and outstanding shares of Oxygen Common Interests converted into Carbon Stock Awards or Carbon Cash Awards, as applicable, pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and shall thereafter represent only the right to receive a Carbon Stock Award or Carbon Cash Award, as applicable, and the right to receive a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively; provided that any such amounts that are attributable to Oxygen Interest Awards shall only be STRICTLY CONFIDENTIAL EXECUTION paid when (and if) the corresponding Carbon Stock Award vests, and shall be forfeited if the corresponding Carbon Stock Award is forfeited. In the event any amounts attributable to Oxygen Interests Awards are forfeited, such amounts shall be distributed reasonably promptly thereafter to the former holders of vested Oxygen Common Interests, Oxygen Interest Awards and In-the-Money Oxygen Options, based upon such holder’s then-applicable Holdback PercentageCOESfx.
(e) Each limited liability company interest share of Merger Sub Subsidiary common stock, par value $0.001 per share, issued and outstanding immediately prior to the Effective Time shall Time, will be converted into and become one limited liability company interest canceled as of the Surviving Company.
(f) At or prior to the Effective Time, Oxygen, the Board of Directors of Oxygen and its compensation committee, as applicable, shall adopt any resolutions and take any actions that are reasonably necessary to effectuate the provisions of Section 1.4(b) and to ensure that, notwithstanding anything to the contrary, following the Effective Time, no service provider of Oxygen and its Subsidiaries shall have any right to acquire any securities of Oxygen, Carbon or any Subsidiary thereof or to receive any payment, right or benefit with respect to any award previously granted in respect of securities of Oxygen, except the right to receive the consideration as provided in Sections 1.4(b) or Section 1.6 in their capacity as Oxygen Holders.
(g) Notwithstanding anything to the contrary set forth in Section 1.6 of the Merger Agreement or any other provision of the Merger Agreement, nothing in this Merger Agreement is intended to, or shall, terminate or otherwise affect the rights of any holder of options to purchase Common Interests listed on Section 3.2(a)(i) of the Oxygen Disclosure Schedules to receive (i) any Dividend Equivalent Payments as set forth on Section 3.11(a) of the Oxygen Disclosure Schedules or (ii) any payments or benefits under Section 5.07 of the Oxygen LLC Agreement, in each case, with respect to such holder’s options to purchase Common Interests listed on Section 3.2(a)(i) of the Oxygen Disclosure Schedules, provided that, for the avoidance of doubt, in no event will there be any payments or benefits due under Section 5.07 of the Oxygen LLC Agreement in respect of the contingent payment from the Holdback Amount or the Holder Expense Fund.
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Conversion of Interests. At Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger Merger, and without any action on the part of Carbon, Oxygen, GeoVax and/or the Merger Sub or the holder of any of the following securitiesSubsidiary:
(a) Subject to Section 2.2(f), each Oxygen All of the shares of GeoVax Common Interest that is Stock (“GeoVax Common Stock”) and all of the shares of GeoVax preferred stock (“GeoVax Preferred Stock”) issued and outstanding immediately prior to the Effective Time (other than Cancelled Interests or any Oxygen Interest Award) shall be converted into the right to receive (i) a number of shares of Carbon except for GeoVax Common Stock equal to the Per Interest and GeoVax Preferred Stock Consideration and (ii) an amount of cash equal to the Per Interest Cash Consideration, in each case as determined pursuant to Section 1.7 (the consideration referred to in clauses (i) and (ii) being collectively referred to as the “Per Common Interest Merger Consideration”; provided that each Oxygen Common Interest (other STRICTLY CONFIDENTIAL EXECUTION than any Oxygen Interest Award) that is owned by a Non-Accredited Investor immediately prior to the Effective Time shall instead dissenting shareholders of GeoVax) will be converted into the right to receive an amount aggregate of cash490,332,879 shares common stock of Dauphin, without interest, equal to par value $.001 per share (“Dauphin Shares”). The Dauphin Shares into which shares of GeoVax Common Stock and GeoVax Preferred Stock are converted as a result of the Merger Consideration Per Fully Diluted Interest (are referred to herein as the “Non-Accredited Investor Common Interest Merger Consideration”) and . As a result of the Merger, each share of GeoVax Common Stock will be converted into the right to receive a contingent payment from 29.2832 Dauphin Shares and each share of GeoVax Preferred Stock will be converted into the Holdback Amount and the Holder Expense Fund pursuant right to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectivelyreceive 29.2832 Dauphin Shares.
(b) At All stock options, warrants, convertible debt, other convertible securities, or other rights to acquire shares of GeoVax (collectively the “GeoVax Convertible Securities”) outstanding at the Effective Time, each award whether or not exercisable and whether or not vested (all of Oxygen Common Interests that is issued and which are listed on Schedule1.3(b) hereto), shall remain outstanding but unvested as of immediately prior to following the Effective Time (an “Oxygen Interest Award”), subject to receipt of a duly executed Holder Acknowledgement and Investor Questionnaire, but shall be converted assumed by Dauphin. GeoVax Convertible Securities shall continue to have, and be subject to, the same terms and conditions as set forth in the underlying Convertible Securities documents, but will be convertible into an award (a “Carbon Stock Award”) with respect to a number Dauphin Shares as described on Schedule 1.3(b). At the time of unvested restricted shares of Carbon Common Stock (rounded to the nearest whole share) that is equal to the product of (i) Closing, the number of Oxygen Common Interests subject to such Oxygen Interest Award, multiplied by (ii) the quotient of (A) the Merger Consideration Per Fully Diluted Interest, divided by (B) the Carbon Signing Price; provided that each Oxygen Interest Award that is held by a Non-Accredited Investor and is issued and outstanding but unvested as of immediately prior to the Effective Time GeoVax Convertible Securities shall be converted into an award (a “Carbon Cash Award”) with respect to an amount of cash, without interest, equal to the Merger Consideration Per Fully Diluted Interest. The vesting schedule and all other material terms of each Carbon Stock Award and Carbon Cash Award shall otherwise remain substantially the same as those that were applicable to the corresponding Oxygen Interest Award (to the extent relevant following the Effective Time) and shall have such other terms applicable to awards in respect of Carbon Common Stock as are consistent with the terms of the Carbon Long-Term Incentive Plan, as in effect from time to timenot exceed 1,355,000.
(c) At the Effective Time, all Oxygen one hundred (100) shares of GeoVax Common Interests that are owned, directly or indirectly, by Oxygen or any of its wholly owned Subsidiaries (the “Cancelled Interests”) Stock shall be cancelled and shall cease issued to exist and no Carbon Common Stock or other consideration shall be delivered in exchange thereforDauphin.
(d) All of the Oxygen Common Interests converted into the right to receive the Per Common Interest Merger Consideration or the Non-Accredited Investor Common Interest Consideration pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and shall thereafter represent only the right to receive (x) the Per Common Interest Merger Consideration and cash in lieu of fractional shares or the Non-Accredited Investor Common Interest Consideration, as applicable, which the Oxygen Common Interests have been converted into the right to receive pursuant to this Section 1.4 and Section 2.2(f), without any interest thereon, and (y) a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively. All of the awards of Oxygen Common Interests converted into Carbon Stock Awards or Carbon Cash Awards, as applicable, pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and shall thereafter represent only the right to receive a Carbon Stock Award or Carbon Cash Award, as applicable, and the right to receive a contingent payment from the Holdback Amount and the Holder Expense Fund pursuant to and subject to the terms and conditions of Section 6.17 and Section 6.18, respectively; provided that any such amounts that are attributable to Oxygen Interest Awards shall only be STRICTLY CONFIDENTIAL EXECUTION paid when (and if) the corresponding Carbon Stock Award vests, and shall be forfeited if the corresponding Carbon Stock Award is forfeited. In the event any amounts attributable to Oxygen Interests Awards are forfeited, such amounts shall be distributed reasonably promptly thereafter to the former holders of vested Oxygen Common Interests, Oxygen Interest Awards and In-the-Money Oxygen Options, based upon such holder’s then-applicable Holdback Percentage.
(e) Each limited liability company interest share of Merger Sub Subsidiary common stock, par value $.001 per share, issued and outstanding immediately prior to the Effective Time shall Time, will be converted into and become one limited liability company interest canceled as of the Surviving Company.
(f) At or prior to the Effective Time, Oxygen, the Board of Directors of Oxygen and its compensation committee, as applicable, shall adopt any resolutions and take any actions that are reasonably necessary to effectuate the provisions of Section 1.4(b) and to ensure that, notwithstanding anything to the contrary, following the Effective Time, no service provider of Oxygen and its Subsidiaries shall have any right to acquire any securities of Oxygen, Carbon or any Subsidiary thereof or to receive any payment, right or benefit with respect to any award previously granted in respect of securities of Oxygen, except the right to receive the consideration as provided in Sections 1.4(b) or Section 1.6 in their capacity as Oxygen Holders.
(g) Notwithstanding anything to the contrary set forth in Section 1.6 of the Merger Agreement or any other provision of the Merger Agreement, nothing in this Merger Agreement is intended to, or shall, terminate or otherwise affect the rights of any holder of options to purchase Common Interests listed on Section 3.2(a)(i) of the Oxygen Disclosure Schedules to receive (i) any Dividend Equivalent Payments as set forth on Section 3.11(a) of the Oxygen Disclosure Schedules or (ii) any payments or benefits under Section 5.07 of the Oxygen LLC Agreement, in each case, with respect to such holder’s options to purchase Common Interests listed on Section 3.2(a)(i) of the Oxygen Disclosure Schedules, provided that, for the avoidance of doubt, in no event will there be any payments or benefits due under Section 5.07 of the Oxygen LLC Agreement in respect of the contingent payment from the Holdback Amount or the Holder Expense Fund.
Appears in 1 contract