Conversion of the Company Common Shares. Each Shareholder, by virtue of the Merger and without any action on the part of such Shareholder, shall be entitled to receive: (i) subject to clauses (iii) and (iv) below and Section 4.11, a number of validly issued, fully paid and non-assessable shares of common stock of Parent, par value $3.125 per share (“Parent Shares”), equal to the quotient of (A) the product of (1) such Shareholder’s Allocable Non-Escrowed Merger Consideration times (2) such Shareholder’s Stock Election Percentage, divided by (B) the Assumed Share Value (the “Elected Parent Shares”); (ii) subject to clauses (iii) and (iv) below, an aggregate amount of cash (the “Elected Cash Consideration”) equal to the product of (A) such Shareholder’s Allocable Non-Escrowed Merger Consideration times (B) a percentage (the “Cash Percentage”) equal to (1) 100% minus (2) such Shareholder’s Stock Election Percentage; (iii) notwithstanding anything in this Agreement to the contrary, in the event that the sum of (A) the aggregate number of Stock Election Shares (as defined in the SBR Merger Agreement) (excluding Stock Election Shares held by the Company and S. ▇▇▇▇ ▇▇▇▇ Enterprises, Inc.) plus (B) the Pro Forma Stock Election Shares (collectively, the “Aggregate Stock Election Shares”), exceeds 5,474,420, then, without any further action by the parties hereto, the aggregate number of Parent Shares to be issued to each Shareholder pursuant to this Agreement shall be reduced to an aggregate amount of Parent Shares equal to the result of (A) such Shareholder’s Elected Parent Shares minus (B) the product of (1) the Shareholder Allocable Excess Election Shares with respect to such Shareholder times (2) the Exchange Ratio (as defined in the SBR Merger Agreement) (the “Adjusted Elected Parent Shares”). In the event of any such adjustment hereunder, each Shareholder’s Cash Percentage shall be increased to an amount equal to (A) 100% minus (B) (1) the product of (x) the Adjusted Elected Parent Shares times (y) the Assumed Share Value, divided by (2) such Shareholder’s Allocable Non-Escrowed Merger Consideration; (iv) notwithstanding anything in this Agreement to the contrary, in the event that the Aggregate Stock Election Shares is less than 3,864,296, then, without any further action by the parties hereto, the Elected Cash Consideration of each Shareholder pursuant to this Agreement shall be reduced to an amount (the “Adjusted Elected Cash Consideration”) equal to the result of (A) such Shareholder’s Elected Cash Consideration minus (B) the Shareholder Allocable Excess Cash with respect to such Shareholder. In the event of any such adjustment hereunder, the aggregate number of Parent Shares to be issued to each Shareholder pursuant to this Agreement shall be increased to an amount equal to (A) (1) such Shareholder’s Allocable Non-Escrowed Merger Consideration minus (2) the Adjusted Elected Cash Consideration divided by (B) the Assumed Share Value.
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Conversion of the Company Common Shares. Each ShareholderSubject to the provisions of this Article 2, each share of Common Stock, without par value, of the Company (each a “Company Common Share” and collectively the “Company Common Shares”) issued and outstanding immediately prior to the Effective Time (but excluding all Company Common Shares that are owned by (i) Parent, Merger Sub or any other direct or indirect Subsidiary of Parent or (ii) the Company or any direct or indirect Subsidiary of the Company (collectively the “Excluded Company Shares”), and excluding all Dissenting Shares) shall, by virtue of the Merger and without any action on the part of such Shareholderthe holder thereof, shall be entitled converted into the right to receive:receive (the “Merger Consideration”):
(i) subject to clauses if the average of the closing sales prices of a share of the Class A Common Stock, par value $0.001 per share, of Parent (iii“Parent Common Shares”) and as reported by the Dow J▇▇▇▇ Quotation Service for the 20 trading days immediately preceding the third calendar day immediately preceding the Closing Date (ivthe “Average Closing Share Price”) below and Section 4.11is greater than $30.00, a that number of validly issued, fully paid and non-assessable shares of common stock of Parent, par value $3.125 per share (“nonassessable Parent Shares”), Common Shares equal to the quotient of (A) Forty Three Million Three Hundred Thirteen Thousand Seven Hundred Eighteen and 00/100 Dollars ($43,313,718.00) (the product of (1) such Shareholder’s Allocable Non-Escrowed Merger Consideration times (2) such Shareholder’s Stock Election Percentage“Purchase Price”), divided by (B) the Assumed total number of Company Common Shares issued and outstanding immediately prior to the Effective Time (but excluding the Excluded Company Shares), further divided by (C) the Average Closing Share Value (the “Elected Parent Shares”);Price; or
(ii) subject to clauses (iii) and (iv) belowif the Average Closing Share Price of the Parent Common Shares is $30.00 or less, an aggregate amount of cash (the “Elected Cash Consideration”) equal to the product of (A) such Shareholder’s Allocable Non-Escrowed Merger Consideration times (B) a percentage (the “Cash Percentage”) cash in an amount equal to (1) 100% minus the Cash Purchase Price divided by (2) such Shareholder’s Stock Election Percentage;
(iii) notwithstanding anything in this Agreement the total number of Company Common Shares issued and outstanding immediately prior to the contraryEffective Time (but excluding the Excluded Company Shares), in the event that the sum of (A) the aggregate number of Stock Election Shares (as defined in the SBR Merger Agreement) (excluding Stock Election Shares held by the Company and S. ▇▇▇▇ ▇▇▇▇ Enterprises, Inc.) plus (B) the Pro Forma Stock Election Shares (collectively, the “Aggregate Stock Election Shares”), exceeds 5,474,420, then, without any further action by the parties hereto, the aggregate that number of validly issued, fully paid and nonassessable Parent Shares to be issued to each Shareholder pursuant to this Agreement shall be reduced to an aggregate amount of Parent Common Shares equal to the result of (A) such Shareholder’s Elected Parent Shares minus (B) the product of (1) the Shareholder Allocable Excess Election Shares with respect to such Shareholder times (2) the Exchange Ratio (as defined in the SBR Merger Agreement) (the “Adjusted Elected Parent Shares”). In the event of any such adjustment hereunder, each Shareholder’s Cash Percentage shall be increased to an amount equal to (A) 100% minus (B) (1) the product quotient of (x) the Adjusted Elected Parent Shares times Purchase Price minus the Cash Purchase Price, divided by (y) the Assumed Share Valuetotal number of Company Common Shares issued and outstanding immediately prior to the Effective Time (but excluding the Excluded Company Shares), further divided by (2) such Shareholder’s Allocable Non-Escrowed Merger Consideration;
(iv) notwithstanding anything in this Agreement to the contrary, in the event that the Aggregate Stock Election Shares is less than 3,864,296, then, without any further action by the parties hereto, the Elected Cash Consideration of each Shareholder pursuant to this Agreement shall be reduced to an amount (the “Adjusted Elected Cash Consideration”) equal to the result of (A) such Shareholder’s Elected Cash Consideration minus (Bz) the Shareholder Allocable Excess Cash with respect to such Shareholder. In the event of any such adjustment hereunder, the aggregate number of Parent Shares to be issued to each Shareholder pursuant to this Agreement shall be increased to an amount equal to (A) (1) such Shareholder’s Allocable Non-Escrowed Merger Consideration minus (2) the Adjusted Elected Cash Consideration divided by (B) the Assumed Average Closing Share ValuePrice.
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