Common use of Merger Payment Schedule Clause in Contracts

Merger Payment Schedule. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to SMMC and the Exchange Agent a schedule (the “Merger Payment Schedule”) that is true, correct and consistent with the Forms of Election received by the Company pursuant to Section 3.02 showing (i) the percentage allocation of the Stock Consideration to each of the holders of Company Securities at the Closing as well as the corresponding number (and class) of shares of SMMC Elected Common Stock to be issued to such holders of Company Common Stock in accordance with Section 3.01 and the Company Charter, (ii) the Per Share Cash Consideration to be paid to each of the holders of Company Common Stock in accordance with Section 3.01 and the Company Charter and (iii) with respect to each holder of Company Securities, the Earnout Pro Rata Portion in respect of such holder’s Company Common Stock and the Earnout Pro Rata Portion in respect of such holder’s Company Options. The Merger Payment Schedule shall also include (A) the name of each Company Securityholder and any other holder of Equity Equivalents and (B) the number and type of Company Shares, Company Options and other Equity Equivalents held by each holder thereof. For the avoidance of doubt, SMMC and the Company agree that (1) if no Company Stockholder makes a Cash Election or receives cash pursuant to Section 3.03(i), the aggregate number of shares of SMMC Elected Common Stock to be issued in respect of Company Shares and issuable in respect of converted Company Options pursuant to the terms of this Agreement shall be 118,950,452 and the Merger Payment Schedule shall reflect the same, (2) if Company Stockholders make a number of Cash Elections that result in the Aggregate Cash Election Amount equaling or exceeding the Cash Consideration Cap (assuming a Cap Adjustment Amount and Applicable Redemption Amount equal to zero (0)), the number of shares of SMMC Elected Common Stock to be issued as Per Share Stock Consideration shall be 101,150,452 and (3) in no event shall the cash payable by SMMC or any other person in respect of Company Shares and the Company Warrant pursuant to the terms of this Agreement exceed the Cash Consideration Cap and the Merger Payment Schedule shall reflect the same.