Spreadsheet. The Company shall deliver to Parent a spreadsheet (the "Spreadsheet") signed by the President and Chief Executive Officer of the Company, the Chief Financial Officer of the Company, and each Shareholder, which shall separately list, (i) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such Shareholder, the certificate numbers for the shares held by such Shareholder, the date of acquisition of such shares, the amount of cash to be issued to each holder, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion percentage.
Appears in 1 contract
Spreadsheet. The At least seven Business Days prior to the Closing Date, the Company shall deliver to Parent a draft Spreadsheet in a form reasonably acceptable to Parent. At least five Business Days prior to the Closing Date, the Company shall deliver to Parent a final spreadsheet in a form reasonably acceptable to Parent (the "“Spreadsheet"”) signed (with the information relating to the Per Share Closing Merger Consideration to be completed by the President Company and delivered to Parent one Business Day prior to the Closing Date), which Spreadsheet shall be certified as complete and correct by the Chief Executive Officer of the Company, or the Chief Financial Officer of the Company, Company as of immediately prior to the Effective Time and each Shareholder, which shall separately listinclude, among other things, as of the Closing:
(a) with respect to each Company Stockholder: (i) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the such Person’s last known address and email address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"extent available); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive whether such Person is a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder)Continuing Employee; (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number and type of shares of Company Capital Stock held by such Shareholder, Person; (iv) the respective certificate numbers for of the shares Company Capital Stock held by such Shareholder, Person; (v) the date of acquisition of such shares, ; (vi) the purchase price of such shares; (vii) whether such shares were acquired pursuant to the exercise of an incentive stock option (as defined in Section 422 of the Code); (viii) the aggregate Per Share Closing Merger Consideration payable to Person; (ix) such Person’s Pro Rata Portion expressed as a percentage and dollar amount of the Escrow Amount; (x) the amount of cash any loans outstanding from the Company to such Person; (xi) the amount, if any, to be issued withheld from any distribution to such Person; (xii) with respect to shares acquired on or after January 1, 2011, or any other security, in each case that would be deemed a “covered security” under Treasury Regulation Section 1.6045-1(a)(15), the cost basis of such shares; (xiii) the amount, if any, to be withheld from any distribution to such Person; and (xiv) such other information that Parent, its agent or the Escrow Agent may reasonably request;
(b) with respect to each holderholder of a Company Option, Company Warrant or any other similar equity award from the Company (i) such Person’s last known address and email address (to the extent available); (ii) whether such Person is a Continuing Employee; (iii) if available to the Company, the social security number (or tax identification number, as applicable) of such Person; (iv) the number and type of Company Capital Stock underlying each such Company Option, Company Warrant or other similar equity award; (v) the grant dates or issue dates of such Company Option, Company Warrant or other similar equity award; (vi) the aggregate Per Share Closing Merger Consideration payable to Person; (vii) such Person’s Pro Rata Portion expressed as a percentage and dollar amount of the Escrow Amount; (viii) with respect to each Company Option, the vesting arrangement with respect thereto; (ix) with respect to Company Options, whether such Company Options are incentive stock options or non-qualified stock options; (x) the exercise price of such Person’s Company Options, Company Warrants or any other similar equity award from the Company; (xi) the aggregate Per Share Closing Merger Consideration payable to such Person, if any; and (xii) such other information that Parent, its agent or the Escrow Agent may reasonably request; and
(c) with respect to each Convertible Note, (i) such Person’s last known address and email address (to the extent available); (ii) if available to the Company, the social security number (or tax identification number, as applicable) of such Person; (iii) the jurisdiction of organization or residency of such Person for Tax purposes; (iv) the classification of such Person for U.S. income Tax; (v) the principal amount of such Convertible Note; (vi) the accrued interest on such Convertible Note as of the Closing Date (taking into account both stated interest and any amount treated as interest or original issue discount for U.S. federal income Tax purposes); (vii) the amount of cash any “change of control” or similar payment with respect to be deposited into such Convertible Note; (viii) whether the Escrow Fund on behalf Convertible Note was issued as part of each Shareholderan investment unit or otherwise with original issue discount, and the value as of the issue date of the Convertible Note of any warrants or other property comprising a component of any such Shareholder's Pro Rata Portion percentageinvestment unit; (ix) the amount of any withholding and the basis for any exemption from or reduction in withholding; and (x) such other information that Parent or its agent may reasonably request.
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
Spreadsheet. The Company shall deliver to Parent Parent, not less than two (2) Business Days prior to the Closing Date, a spreadsheet (the "“Spreadsheet"”) signed in a form reasonably acceptable to Parent, which spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the CompanyCompany (such certification, the Chief Financial Officer “Spreadsheet Certificate”) as of the Company, Closing and each Shareholder, which shall separately listinclude, among other things, as of the Closing:
(a) With respect to each Company Stockholder, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address and, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached if available to the Spreadsheet Company, email address and social security number (the "Third Party Payments"or tax identification number, as applicable); , (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers number(s) representing such shares (with data for each such certificate on a separate row of the shares held by Spreadsheet), (iv) the Pro Rata Portion applicable to such ShareholderPerson, (v) the date of acquisition of such shares, the aggregate amount of cash to be paid and shares of Parent Common Stock to be issued to each holdersuch Person at the Closing in respect of such shares, (vi) the aggregate amount of cash and amount of shares of Parent Common Stock deposited with the Escrow Agent in respect of the Escrow Amount and with the Stockholder Representative in respect of the Expense Fund Amount with respect to such Person, (vii) any amounts required to be deposited into withheld and (viii) such other information relevant thereto or that Parent or the Escrow Fund on behalf paying agent may reasonably request; and
(b) with respect to each holder of a Company Option or Company RSU, (i) such Person’s address and, if available to the Company, social security number (or tax identification number, as applicable), (ii) the number of shares of Company Capital Stock underlying each ShareholderCompany Option and/or Company RSU held by such Person, (iii) the respective grant date(s) of such Company Options and/or RSUs, (iv) the respective exercise price(s) per share of such Company Options, (v) the respective vesting arrangement(s) with respect to such Company Options and/or RSUs, (vi) whether such Company Options are incentive stock options or non-qualified stock options, and (vii) such Shareholder's Pro Rata Portion percentageother information relevant thereto or that Parent may reasonably request.
(c) as applicable, the Spreadsheet shall also include, with respect to each holder of shares of Company Capital Stock or any other security that would be deemed a “covered security” under Treasury Regulation § 1.6045-1(a)(15), the cost basis and date of issuance of such shares or securities.
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
Spreadsheet. The Prior to the Closing Date, the Company shall prepare and deliver to Parent Parent, the Stockholder Representative and the Paying Agent a spreadsheet (the "“Spreadsheet"”) signed in a form reasonably acceptable to the Paying Agent and Parent, provided, however, that at any time prior to the Closing Date, the Company may deliver to Parent, the Stockholder Representative and the Paying Agent a revised or updated Spreadsheet to reflect new facts and circumstances occurring after the delivery of a previous Spreadsheet (in which event such revised or updated spreadsheet shall be deemed to be the Spreadsheet for all purposes of and under this Agreement), which spreadsheet shall be certified as complete, correct and in accordance with the Charter Documents by the President and Chief Executive Officer of the Company, the Chief Financial Officer of the CompanyCompany (such certification, the “Spreadsheet Certificate”) as of the Closing and each Shareholder, which shall separately listinclude, among other things, as of the Closing: with respect to each Company Stockholder and Company Optionholder (i) such Person’s address where all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid amounts payable to such person, and copies Company Stockholder or holder of all invoices regarding such Third Party expenses owing Company Options pursuant to such person this Agreement shall be attached mailed and, if available to the Spreadsheet Company, social security number (the "Third Party Payments"or tax identification number, as applicable); , (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers for number(s) representing such shares, (iv) the shares held by such Shareholder, the date respective date(s) of acquisition of such shares, (v) the Closing Per Share Amount applicable to such Person, (vi) the portion of the Closing Cash Payment to be paid to such Person at the Closing in respect of such shares of Company Capital Stock or Company Options pursuant to ARTICLE I, (vii) the estimated portion of the Special Payment to be paid to such Person at the time indicated in Section 5.18 in respect of such shares of Company Capital Stock or Company Options, (viii) the portion of the amount of cash otherwise payable to be issued such Company Stockholder and/or Company Optionholder that is required to each holderwithheld by the Company under applicable Tax withholding laws, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, and (ix) such Shareholder's Company Stockholder or Company Optionholder’s Pro Rata Portion percentageof the maximum Earn-Out Amount; (x) the identification of any shares that were eligible for an election under Section 83(b) of the Code, including the date of issuance of such shares, and whether such election under Section 83(b) of the Code was timely made and (xi) such other information relevant thereto or that Parent or the Paying Agent may reasonably request. The Spreadsheet shall also set forth the Company’s Indebtedness for borrowed money as of the Closing Date.
Appears in 1 contract
Spreadsheet. The Company shall deliver to Parent and the Exchange Agent a spreadsheet (the "“Spreadsheet"”) signed substantially in the form attached hereto as Schedule 5.19, which spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the Company, the and Chief Financial Officer of the Company, Company as of the Closing and each Shareholder, which shall separately listinclude, among other things, as of the Closing, (i) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (Shareholders and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's addresstheir respective addresses, the number of shares of Company Capital Stock held by such Shareholderpersons (including whether such shares are Company Common Stock or any other capital stock), the respective certificate numbers numbers, whether such shares of Company Capital Stock are subject to vesting (and if so, for each certificate, the number of shares held by such Shareholderthat are vested as of the Closing), the date of acquisition of such shares, the Pro Rata Portion of Merger Shares to be held back pursuant to Section 1.6(b)(iv), the Pro Rata Portion of Merger Cash (if any) to be held back pursuant to Section 1.6(b)(iv), the number of Merger Shares (if any) to be issued and amount of cash Merger Cash to be paid to each holder at Closing, outstanding Shareholder loans (if any) to be deducted from any consideration payable to a Shareholder pursuant to Section 1.6(f), and such other information relevant thereto or which the Exchange Agent may reasonably request, and (ii) all holders of Company Options and their respective addresses, the number of shares of Company Capital Stock underlying each such Company Option, the grant dates and exercise prices of such Company Options and the vesting arrangement with respect to such Company Options, the exercise price of each Company Option, and indicating, with respect to each Company Option, whether such Company Option is an incentive stock option or a non-qualified stock option, the amount of Option Consideration to be issued to each holder, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion percentageother information relevant thereto or which Parent may reasonably request. The Company shall deliver the Spreadsheet three (3) Business Days prior to the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
Spreadsheet. The Company shall deliver to Parent Purchaser and the Paying Agent three (3) Business Days prior to the Closing Date a spreadsheet (the "Spreadsheet") signed in a form reasonably acceptable to Purchaser, which shall include, among other things, as of the Closing:
(a) With respect to each Shareholder entitled to receive any portion of the Merger Consideration set forth in this Agreement: (i) such Person's name, address and, if applicable, type of entity and state of formation; (ii) the number and type of shares (i.e. common or preferred and series of preferred) of Company capital stock held by such Person, (iii) the President and Chief Executive Officer respective certificate number(s) representing such shares, (iv) the percentage of the Company, 's outstanding capital stock held by such Person (v) the Chief Financial Officer percentage of the Company, and each Shareholder, which shall separately list, 's outstanding Series D Preferred Stock held by such Person; (ivi) all Third Party Expenses to be paid out the percentage of the Total Consideration, listing each person separately that shall receive a payment Company's outstanding Series E Preferred Stock held by such Person; (vii) the aggregate amount of Third Party expenses at Closing, the address (and contact person) for such payment, the amount cash to be paid to such person, Person at the Closing in respect of such shares; (viii) the number of shares of Parent Common Stock to be issued and copies of all invoices regarding such Third Party expenses owing delivered to such person shall Person at the Closing in respect of such shares; (ix) the number of shares of Parent Common Stock to be attached issued in the name of such Person at Closing and delivered to and held by the Purchaser on behalf of such Person as Holdback Shares pursuant to the Spreadsheet (terms of the "Third Party Payments")Holdback Agreement; (iix) all Contingent Closing Payments the Pro Rata Share of such Person; and (xi) whether any amounts are required to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (withheld from any Shareholders and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closingif so, the amount of such UAP Payment, the address of the UAP Participantwithholdings; and
(ivb) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments The Company will also provide to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) Paying Agent, if requested, social security numbers or tax identification numbers for each Shareholder, such Shareholder's address, the number Shareholder entitled to receive any portion of shares of Company Capital Stock held by such Shareholder, the certificate numbers for the shares held by such Shareholder, the date of acquisition of such shares, the amount of cash to be issued to each holder, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion percentagethat Merger Consideration hereunder.
Appears in 1 contract
Sources: Merger Agreement (Keyw Holding Corp)
Spreadsheet. The Company (a) At least two (2) Business Days prior to the Closing Date, the Sellers shall deliver to Parent Buyer a spreadsheet (the "“Spreadsheet"”) signed setting forth the following information, in a form reasonably acceptable to Buyer and accompanied by the President reasonable documentation in support of all calculations and Chief Executive Officer of the Companyinformation set forth therein, the Chief Financial Officer of the Company, and each Shareholder, which shall separately list, including:
(i) all Third Party Expenses to be paid out The calculation of the Total ConsiderationClosing Consideration in accordance with Section 2.1, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of including all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); Leakage;
(ii) all Contingent Closing Payments with respect to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description Seller that receives any portion of the nature Closing Consideration pursuant to Section 2.1, as of immediately prior to the Closing: (A) the name, address and email address of such Seller; (B) whether such Seller is a current or former employee of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder)Company or any Company Subsidiary; (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (ivC) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; number, class and (vi) for each Shareholder, such Shareholder's address, the number of shares series of Company Capital Stock Shares held by such Shareholder, Seller and the respective certificate numbers for the shares held by such Shareholder, numbers; (D) the date of acquisition of such shares, the ; (E) amount of cash any Taxes to be issued withheld in accordance with Section 2.4 from the consideration that such holder is entitled to each holder, receive; (F) whether the amount Seller has exercised Company Options in accordance with the Option Notice; and (G) the final Pro Rata Portion of cash such Seller and the number of shares of Buyer Common Stock to be deposited into delivered to such Seller at Closing pursuant to the Escrow Fund terms of this Agreement;
(iii) wire or other payment instructions for all other cash amounts to be paid by Buyer in accordance with this Agreement, including any Third Party Expenses that Buyer is to pay, or cause to be paid, following the Closing on the Company’s behalf; and
(iv) any other information reasonably requested by Buyer prior to delivery of the Spreadsheet for the purposes of making the payments, or issuing the shares of Buyer Common Stock, contemplated by this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of each ShareholderBuyer or any of its Affiliates or its or their Representatives, or any disclosure made by or on behalf of the Company, (i) it is expressly acknowledged and agreed by the Sellers that Buyer and its Affiliates and its and their Representatives shall be entitled to rely on the Spreadsheet without any obligation to investigate or verify the accuracy or correctness thereof, and such Shareholder's Pro Rata Portion percentageto make payments in accordance therewith, and (ii) in no event shall Buyer or any of its Affiliates or Representative have any liability to any Person for any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Spreadsheet and the allocation set forth therein, or payments made by any Person (including Buyer, the Company, and their respective Affiliates or Representatives, including any other applicable exchange agent or paying agent) in accordance with the Spreadsheet.
Appears in 1 contract
Spreadsheet. (a) The Company shall prepare and deliver to Parent, a spreadsheet (the “Spreadsheet”) in form and substance reasonably satisfactory to Parent, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing:
(i) the names of all Company Shareholders and their respective street and e-mail addresses (if available), telephone number (if available), taxpayer identification numbers (if any) and bank information (if available) (including the respective bank name and number, branch name and address, swift number, account number and other wire transfer information);
(ii) the number and class of Company Shares held by each Company Shareholder;
(iii) the calculation of the Per Share Consideration, the Per Share Cash Consideration and the Per Share Stock Consideration;
(iv) the calculation of the Closing Stock Consideration, Aggregate Cash Consideration, Fully-Diluted Company Shares and Per Share Consideration;
(v) the status of each Company Shareholder as a Non-Qualified Company Securityholder or a Qualified Company Securityholder as notified by Parent in accordance with Section 6.8;
(vi) the calculation of the Pro Rata Share and Pro Rata Share of the Escrow Amounts of each Company Shareholder;
(vii) any withholding and reallocation of proceeds in accordance with the Shareholder Payment Letter; and
(viii) a funds flow memorandum setting forth applicable wire transfer instructions of each Person who will receive a payment on the Closing Date pursuant to Article I.
(b) The Company shall prepare and deliver to Parent a spreadsheet (the "Spreadsheet") signed by the President and Chief Executive Officer draft of the Company, Spreadsheet not later than five Business Days prior to the Chief Financial Officer of the Company, and each Shareholder, which shall separately list, (i) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address Closing Date (and contact person) for such paymentthe Company shall consider in good faith any reasonable comments delivered by Parent and its Representatives (provided, that, in no event shall the amount failure to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified agree on the Spreadsheet as employee bonus payments shall be treated as Contingent deemed a condition to Closing)) and a final version of the Spreadsheet to Parent not later than two Business Days prior to the Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at ClosingDate. Without limiting the foregoing, the amount of such UAP PaymentCompany shall provide to Parent, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection together with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each ShareholderSpreadsheet, such Shareholder's addresssupporting documentation, information and calculations as are reasonably necessary for Parent to verify and determine the number of shares of Company Capital Stock held by such Shareholdercalculations, amounts and other matters set forth in the certificate numbers for the shares held by such Shareholder, the date of acquisition of such shares, the amount of cash to be issued to each holder, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion percentageSpreadsheet.
Appears in 1 contract
Spreadsheet. The Not less than five (5) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the "“Spreadsheet"”) signed setting forth the following information, in form and substance reasonably satisfactory to Parent and accompanied by the President and Chief Executive Officer documentation reasonably satisfactory to Parent in support of the Companycalculation of the information set forth therein:
(a) calculations of the Total Consideration and all components thereof, as well as the Closing Cash, Third Party Expenses, Closing Indebtedness, Net Working Capital, and the Per Share Merger Consideration (collectively, the Chief “Closing Financial Officer of the Company, and Information”);
(b) with respect to each Shareholder, which shall separately list, Stockholder: (i) all Third Party Expenses to be paid out the name and address of the Total Considerationsuch holder, listing each person separately that shall receive a payment of Third Party expenses at Closingand, if available, the e-mail address (and contact person) for of such paymentholder, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive whether such holder is a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description current or former employee of the nature Company or any of the contingent payment (provided that for purposes of this Agreementits Subsidiaries, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closingthe number, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; class and (vi) for each Shareholder, such Shareholder's address, the number series of shares of Company Capital Stock held by such Shareholderholder, the certificate numbers for the shares held by such Shareholder, (iv) the date of acquisition of such shares, the amount of cash (v) whether any Taxes are to be issued withheld in accordance with Section 1.9 from consideration that such holder is entitled to each holderreceive pursuant to Section 1.6(b)(i), (vi) the amount gross consideration that such holder is entitled to receive pursuant to Section 1.6(b)(i) (on a issuance-by-issuance basis and in the aggregate), (vii) such Stockholder’s Loan Repayment Amount, if any, (viii) the Pro Rata Portion of cash to be deposited such holder and the amounts deemed contributed by such holder into the Escrow Fund on behalf Funds, (ix) the net amounts to be paid to such holder in accordance with Section 1.6(b)(i) after deduction of the amounts referred to in clauses (vii) and (viii);
(c) with respect to each ShareholderCompany Option: (i) the name, and if available the address and e-mail address of such Shareholder's holder, (ii) whether such holder is an employee, consultant, director or officer of the Company or any of its Subsidiaries, (iii) the grant date and expiration date thereof, (iv) whether such Company Option was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option and the extent to which such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option immediately prior to the Closing, (vii) whether such Company Option is a nonstatutory option or qualifies as an incentive stock option as defined in Section 422 of the Code, (viii) whether such Company Option is “early exercisable” for shares of Company Restricted Stock, (ix) such holder’s Loan Repayment Amount, if any, (x) the Pro Rata Portion percentage.of such holder and the amounts deemed contributed by such holder into the Escrow Funds, (xi) the net amounts to be paid to such holder in accordance with Section 1.6(c) after deduction of the amounts referred to in clauses (ix) and (x);
(d) with respect to each Company Warrant: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing, (iii) the exercise price per share, (iv) the Pro Rata Portion of such holder and the amounts deemed contributed by such holder into the Escrow Funds, (v) the net amounts to be paid to such holder in accordance with Section 1.6(d) after deduction of the amounts referred to in clause (iv), and (v) such other information which Parent or the Paying Agent may reasonably request;
Appears in 1 contract
Spreadsheet. The Company shall deliver to Parent and the Exchange Agent three (3) Business Days prior to the Closing Date a spreadsheet (the "“Spreadsheet"”) signed substantially in the form attached hereto as Schedule 5.20, which spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer and Treasurer of the Company, the Chief Financial Officer Company as of the CompanyClosing and which shall include, and among other things, as of the Closing:
(a) with respect to each Shareholder, which shall separately list, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address and social security number (or tax identification number, listing each person separately that shall receive a payment of Third Party expenses at Closingas applicable), the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson (including whether such shares are Company Common Stock, Company Series A Preferred Stock, the Company Series B Preferred Stock, the Company C Preferred Stock or the Company Series D Preferred Stock or Company Special Stock), (iii) the respective certificate numbers number(s) representing such shares, (iv) whether such shares constitute Company Unvested Common Stock (including, for each certificate, the number of shares held by such Shareholderthat are vested as of the Closing), (v) the liquidation preference applicable to each share of Company Preferred Stock (pursuant to Section 1.6), (vi) the date of acquisition of such shares, (vii) the Pro Rata Portion applicable to such Person, (viii) the number of shares of Parent Common Stock to be issued and amount of cash to be issued paid to each holder, (ix) the number shares of Parent Common Stock and amount of cash, if any, to be paid by the Shareholder in settlement of tax withholding obligations pursuant to Section 1.6(h), and (x) such other information relevant thereto or which the Exchange Agent may reasonably request, and
(b) with respect to each Vested Company Optionholder and/or holder of Common Bonus Units and/or holder of a Company Warrant, (i) such Person’s address and social security number (or tax identification number, as applicable), (ii) the number of shares of Company Capital Stock underlying each Company Option and Company Warrant held by such Person and the number of Common Bonus Units (if any) held by such Person, (ii) the respective grant date(s) of such Company Options, (iii) the respective exercise price(s) of such Company Options and Company Warrants, (iv) whether such Company Options are incentive stock options or non-qualified stock options, (v) the aggregate amount of cash to be deposited into paid to such person at the Escrow Fund on behalf Closing in respect of each Shareholderany Vested Company Options and Company Warrants held by such Person, and such Shareholder's (vi) the Pro Rata Portion percentageapplicable to such Person, (vii) any tax withholding amounts, if applicable, and (viii) such other information relevant thereto or that Parent or the Exchange Agent may reasonably request.
Appears in 1 contract
Spreadsheet. The No less than three Business Days prior to Closing, the Company shall prepare and deliver to Parent Acquirer a spreadsheet (the "“Spreadsheet"”) signed in the form and substance reasonably satisfactory to Acquirer, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing:
(a) the names of all Company Shareholders, Company Optionholders and Company Warrantholders, and their respective street and e-mail addresses (if available), telephone number (if available), Israeli identification number (if available), taxpayer identification numbers (if any) and (other than in respect of Company Securityholders whose Company Options or Company Shares are held by the President and Chief Executive Officer 102 Trustee in respect of which the bank information shall be that of the Company102 Trustee) bank information (if available) (including the respective bank name and number, branch name and address, swift number, account number and other wire transfer information);
(b) the number, class and series of Company Shares held by such Persons and the respective certificate numbers;
(c) the number, class and series of Company Shares subject to, and if applicable, the Chief Financial Officer of the Companyexercise price per share in effect for, each Company Option and each Shareholder, which shall separately list, Company Warrant;
(id) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Parent Common Stock subject to the Assumed Options;
(e) the vesting status, schedule and whether such Company Capital Stock held by such Shareholder, the certificate numbers Optionholder has delivered a duly executed Option Cancellation and Conversion Agreement to Acquirer with respect to Company Options and Unvested Company Shares;
(f) for the shares held by such Shareholder, each Company Option that was exercised prior to the date of acquisition delivery of the Spreadsheet, (i) the Tax status of such sharesCompany Option and the shares acquired thereby under Section 422 of the Code, if applicable, or any applicable foreign Tax law, (ii) the date of such exercise and whether such Company Option was granted and is subject to Tax pursuant to Section 3(i) of the Ordinance or Section 102 of the Ordinance and the applicable subsection of Section 102 of the Ordinance;
(g) the calculation of the (i) Aggregate Consideration, (ii) the Company Series A Preferred Shares Aggregate Liquidation Preference, (iii) the Company Series A-1 Preferred Shares Aggregate Liquidation Preference, (iv) Company Series A and Company Series A-1 Aggregate Preferred Shares Liquidation Preference, (v) the Fully-Diluted Company Series A Shares, (vi) the Fully-Diluted Company Series A-1 Shares, (vii) the Participating Consideration, (viii) the Fully-Diluted Company Shares, (ix) the Participating Per Share Payment Amount (including, in respect of the holders of Unvested Company Shares, the amount number of cash to be issued to each holderUnvested Company Shares and the Unvested Cash), (x) Company Series A Preferred Per Share Payment Amount, (xi) Company Series A-1 Preferred Per Share Payment Amount, (xii) in respect of Company Employees who hold Unvested Company Options, the amount number of cash to be deposited into Assumed Options, and (xiii) each Indemnifying Party’s Pro Rata Share of the Adjustment Escrow Amount, the Indemnity Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion the Shareholders’ Agent Expense Amount (expressed in both in dollars and as a percentage); and
(h) a funds flow memorandum setting forth applicable wire transfer instructions and other information reasonably requested by Acquirer.
Appears in 1 contract
Spreadsheet. The Company shall prepare and deliver to Parent Acquirer, in accordance with Section 5.12, a spreadsheet (the "“Spreadsheet"”) signed by the President in form and Chief Executive Officer substance reasonably satisfactory to Acquirer, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing:
(a) the names of all of Company Securityholders and, where available, their respective addresses, e-mail addresses, taxpayer identification numbers, and whether, to the Company’s knowledge, such Person is an Accredited Securityholder or Unaccredited Securityholder;
(b) the number and type of shares of Company Capital Stock held by, or subject to the Company Options held by, such Company Securityholders and, in the case of outstanding shares, the Chief Financial Officer respective certificate or book-entry numbers;
(c) an indication of whether any shares of Company Capital Stock were acquired upon exercise of a Company Option (and, if so, whether such Company Option was an “incentive stock option” within the meaning of Section 422 of the Company, Code and each Shareholder, which shall separately list, (ithe purchase and sale of Company Capital Stock pursuant to this Agreement results in a “disqualifying disposition” of such shares described in Section 421(b) all Third Party Expenses to be paid out of the Total ConsiderationCode);
(d) an indication of whether any share of Company Capital Stock is or has been subject to vesting provisions and, listing each person separately that shall receive if so, whether a payment of Third Party expenses at Closing, the address (and contact personvalid election was made under Section 83(b) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment Code with respect to any such Company Capital Stock;
(provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iiie) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held subject to and the exercise price per share in effect for each Company Option;
(f) the number of shares of Company Capital Stock subject to In-the-Money Company Options, and whether any such In-the-Money Company Options are Employee Options or Non-Employee Options;
(g) the calculation of Fully Diluted Company Capital Stock, the Per Share Closing Consideration, the Per Share Closing Total Value, the Per Share Cash Percentage, the Per Share Stock Percentage, for each Company Option, the Option Consideration for such Company Option, the Total Liquidation Preference, the Aggregate Exercise Amount;
(h) the calculation of the aggregate amount of cash and Acquirer Common Stock payable or issuable to each such Company Securityholder pursuant to Section 1.3(a), and the total amount of Taxes to be withheld from such payment;
(i) each Company Stockholder’s Pro Rata Share (expressed as a percentage);
(j) the following information with respect to each of the shares of Company Capital Stock set forth in clause (b) of this Section 5.8 above that would be deemed a “covered security” under Treasury Regulation Section 1.6045-1(a)(15), for federal tax purposes and to the knowledge of the Company, (i) the date such shares of Company Capital Stock were originally purchased (or the holding period otherwise started) and (ii) the Company Stockholder’s adjusted tax basis in such shares of Company Capital Stock;
(k) if a Company Securityholder is a borrower under a promissory note with the Company or is otherwise indebted to the Company for any monetary amount, the amount owed by such Shareholder, Company Securityholder (including all accrued interest thereon) as of the certificate numbers for the shares held by such Shareholder, the date of acquisition of such shares, Effective Time which shall be deducted from the amount of cash payable in connection with the Closing to be issued to each holder, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, such Company Securityholder; and
(l) a funds flow memorandum setting forth applicable wire transfer instructions and such Shareholder's Pro Rata Portion percentageother information reasonably requested by Acquirer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Castle Biosciences Inc)
Spreadsheet. The Company shall prepare and deliver to Parent Acquirer, in accordance with Section 5.12, a spreadsheet (the "“Spreadsheet"”) signed by in form and substance reasonably satisfactory to Acquirer, which spreadsheet shall be dated as of the President Closing Date and Chief Executive Officer shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing:
(a) the names of all of Company Securityholders and their respective addresses, e-mail addresses, and whether, to the Company’s knowledge based on the information available to the Company, such Person is an Accredited Securityholder or Unaccredited Securityholder;
(b) the Chief Financial Officer number, type and series of shares of Company Capital Stock held by, or subject to Company Options or Company Warrants held by, such Company Securityholders and, in the case of outstanding shares, the respective certificate or book-entry numbers;
(c) an indication of whether any shares of Company Capital Stock were acquired upon exercise of a Company Option (and, if so, whether such Company Option was an “incentive stock option” within the meaning of Section 422 of the CompanyCode and the purchase and sale of Company Capital Stock pursuant to this Agreement results in a “disqualifying disposition” of such shares described in Section 421(b) of the Code);
(d) an indication of whether any share of Company Capital Stock is or has been subject to vesting provisions and, if so, whether a valid election was made under Section 83(b) of the Code with respect to any such Company Capital Stock;
(e) the number of shares of Company Common Stock subject to and the exercise price per share in effect for each Company Option;
(f) the number of shares of Company Common Stock subject to In-the-Money Company Options, and each Shareholder, which shall separately list, whether any such In-the-Money Company Options are Employee Options or Non-Employee Options;
(i) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (ivg) the amount number, type and class of any employer Taxes required shares of Company Capital Stock subject to be paid and the exercise price per share in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) effect for each Shareholder, such Shareholder's address, Company Warrant;
(h) the number of shares of Company Capital Stock held by such Shareholdersubject to In-the-Money Company Warrants;
(i) the calculation of (A) Fully Diluted Company Capital Stock as of the Effective Time, (B) for each share of Company Series 1 Preferred Stock, the certificate numbers for the shares held by such ShareholderSeries 1 Liquidation Preference Per Share, the date Series 1 Closing Per Share Value and the Series 1 Closing Per Share Consideration, (C) for each share of acquisition Company Series 2 Preferred Stock, the Series 2 Liquidation Preference Per Share, the Series 2 Closing Per Share Value and the Series 2 Closing Per Share Consideration, (D) the Per Share Closing Consideration, (E) the Per Share Closing Total Value, (F) the Per Share Cash Percentage with respect to Accredited Securityholders, (G) the Per Share Stock Percentage with respect to Accredited Securityholders, (H) for each In-the-Money Company Option, the Spread Value and Option Consideration for such Company Option, (I) for each In-the-Money Company Warrant, Spread Value and the Per Share Closing Warrant Consideration, (J) the Total Unaccredited Stockholder Cash Amount and the Total Unaccredited Warrantholder Cash Amount, (K) the Total Series 1 Liquidation Preference, the Total Series 2 Liquidation Preference, the Total Liquidation Preference and the Remaining Liquidation Preference Amount, (L) the Aggregate Exercise Amount and the Series 1 Warrants Aggregate Exercise Amount;
(j) the calculation of the aggregate amount of cash and Acquirer Common Stock payable or issuable to each such sharesCompany Securityholder pursuant to Section 1.3(a), and whether such amount is subject to Tax withholding;
(k) each Company Securityholder’s Closing Pro Rata Share, Milestone Pro Rata Share and Indemnity Pro Rata Portion as of the Effective Time;
(l) the portion of the Adjustment Escrow Amount, Indemnity Escrow Amount and Expense Fund contributed by each Company Securityholder and, with respect to the Indemnity Escrow Amount, the amount of cash Indemnity Escrow Cash and Indemnity Escrow Shares contributed by each Company Securityholder;
(m) the following information with respect to each of the shares of Company Capital Stock set forth in clause (b) of this Section 5.8 above that would be deemed a “covered security” under Treasury Regulation Section 1.6045-1(a)(15), for federal tax purposes and to the knowledge of the Company, (i) the date such shares of Company Capital Stock were originally purchased (or the holding period otherwise started) and (ii) the Company Stockholder’s adjusted tax basis in such shares of Company Capital Stock; and
(n) a funds flow memorandum setting forth other information reasonably requested by Acquirer, including wire transfer instructions with respect to any payment of Closing Company Debt and Unpaid Company Transaction Expenses to be issued paid by Acquirer (but, for the avoidance of doubt, excluding wire transfer instructions with respect to each holder, the amount of cash any payment to be deposited into the Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion percentageCompany Securityholders).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Castle Biosciences Inc)
Spreadsheet. The Not less than two days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the "“Spreadsheet"”) signed which Spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the Company, the and Chief Financial Officer of the Company, Company as of the Closing and each Shareholder, which shall separately list, as of the Closing, (ia) all Third Party Expenses to be paid out holders of Company Shares and their respective addresses on the stock transfer records of the Total ConsiderationCompany, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact personb) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock Shares held by such Shareholderpersons (including whether such shares are Company Common Shares or Company Preferred Shares), and the respective certificate numbers for the shares held by such Shareholdernumbers, if applicable, (c) the date of acquisition of such shares, (d) the number of Parent Common Shares to which each holder of Series A-1 Preferred is entitled at the Effective Time and the number which shall be held in escrow pursuant to the Escrow Agreement, (e) the amount of cash Cash Consideration to be issued which each holder of Company Common Shares is entitled; (f) all holders of In-the-Money Options and their respective addresses, the number of shares of Company Common Shares underlying each such In-the-Money Option, the grant date of each such In-the-Money Option, an indication, with respect to each holdersuch In-the-Money Option, of whether such In-the-Money Option is an incentive stock option or a non-qualified stock option, the per share exercise price for such In-the-Money Option, whether such holder has delivered an In-the-Money Option Acknowledgment, and the amount of cash Cash Consideration payable to be deposited into such In-the-Money Option holders under Section 1.4.5; (g) all holders of Company Options, other than In-the-Money Options, and their respective addresses, the Escrow Fund on behalf number of Company Common Shares underlying each such Company Option, the grant date of each Shareholdersuch Company Option, and the per share exercise price for such Shareholder's Pro Rata Portion percentageCompany Option; and (h) such other information relevant thereto or which Parent or its transfer or exchange agent may reasonably request.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Primus Knowledge Solutions Inc)
Spreadsheet. The At least twelve (12) Business Days prior to the Closing Date, the Company shall deliver to Parent a draft spreadsheet in a form reasonably acceptable to Parent. At least five (5) Business Days prior to the Closing Date, the Company shall deliver to Parent a final spreadsheet (the "“Spreadsheet"”) signed in a form reasonably acceptable to Parent (with the information relating to the Per Share Merger Consideration to be completed by the President Company and delivered to Parent one (1) Business Day prior to the Closing Date), which Spreadsheet shall be certified as complete and correct by the Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, Company as of the immediately prior to the Effective Time and each Shareholder, which shall separately listinclude, among other things, as of the Closing:
(a) With respect to each Company Shareholder: (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address and electronic mail address, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closingwhether such Person is a Continuing Employee, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number and type of shares of Company Capital Stock held by such ShareholderPerson, (iv) the respective certificate numbers for of the shares Company Capital Stock held by such ShareholderPerson, (v) the date of acquisition of such shares, (vi) the purchase price of such shares, (vii) whether such shares were acquired pursuant to the exercise of an incentive stock option (as defined in Section 422 of the Code), (viii) the aggregate Per Share Merger Consideration payable to Person, (ix) such Person’s Pro Rata Portion expressed as a percentage and portion of each of the Escrow Amount and the Expense Escrow Amount, (x) the amount of cash any loans outstanding from the Company to such Person, (xi) the amount, if any, to be issued withheld from any distribution to such Person, (xii) any vesting schedule and repurchase price applicable to such shares, (xiii) the identification of any shares that were eligible for an election under Section 83(b) of the Code, including the date of issuance of such shares, and to the Knowledge of the Company, whether such election under Section 83(b) was made, (xi) with respect to shares acquired on or after January 1, 2011 that are covered securities, the adjusted tax basis of such shares and (xii) such other information relevant thereto or which Parent, its agent or the Escrow Agent, may reasonably request; and
(b) With respect to each holderholder of a Company Option, Company Warrant or any other similar equity award from the Company (i) such Person’s address, (ii) whether such Person is a Continuing Employee, (iii) if available to the Company, social security number (or tax identification number, as applicable), (iv) the number and type of Company Capital Stock underlying each such Company Option, Company Warrant or other similar equity award, (v) the grant dates or issue dates of such Company Option, Company Warrant or other similar equity award, (vi) with respect to each Company Option, the amount vesting arrangement with respect thereto, (vii) with respect to each Company Option, whether such Company Options are incentive stock options or non-qualified stock options, (viii) the exercise price of cash such Person’s Company Option, Company Warrant or any other similar equity award from the Company, (ix) the aggregate Per Share Merger Consideration payable to be deposited into the Escrow Fund on behalf of each Shareholdersuch Person, if any, and (x) such Shareholder's Pro Rata Portion percentageother information relevant thereto or which Parent may reasonably request.
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
Spreadsheet. The Company shall deliver to Parent Acquirer three (3) Business Days prior to the Closing Date a spreadsheet (the "“Spreadsheet"”) signed in a form reasonably acceptable to Acquirer, which spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the CompanyCompany (such certification, the Chief Financial Officer “Spreadsheet Certificate”) as of the Company, Closing and each Shareholder, which shall separately listinclude, among other things, as of the Closing:
(a) With respect to each holder of Company Capital Stock, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number and type of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers for number(s), if issued, representing such shares, (iv) the shares held by such Shareholder, the date respective date(s) of acquisition of such shares, (v) the Pro Rata Portion applicable to such Person, (vi) the aggregate amount of cash (or percentage of the Closing Consideration) to be issued paid to each holdersuch Person at the Closing in respect of such shares, (vii) the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholdersuch Person, (viii) the percentage of any Earnout Payments such Person would be entitled to receive if the earnout is met, (ix) any amounts required to be withheld, and (x) such Shareholder's Pro Rata Portion percentageother information relevant thereto or that Acquirer or the Paying Agent may reasonably request;
(b) With respect to each holder of a Company Option, (i) such Person’s address, (ii) the number of shares of Company Capital Stock underlying each Company Option held by such Person, (iii) the respective grant date(s) of such Company Options, (iv) the respective exercise price(s) per shares of such Company Options, (v) the respective vesting arrangement(s) with respect to such Company Options, (vi) whether such Company Options are incentive stock options or non-qualified stock options, and (vii) such other information relevant thereto that Acquirer may reasonably request.
Appears in 1 contract
Spreadsheet. The Company shall deliver deliver, not less than five (5) Business Days prior to the Closing Date, to Parent a spreadsheet (the "“Spreadsheet"”) signed in a form reasonably acceptable to Parent, which spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the Company, the Chief Financial Officer of the CompanyCompany (such certification, the “Spreadsheet Certificate”) as of the Closing and each Shareholder, which shall separately listinclude, among other things, as of the Closing:
(a) with respect to each Company Stockholder, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s name, listing each person separately that shall receive a payment of Third Party expenses at Closingaddress and, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached if available to the Spreadsheet (the "Third Party Payments"); Company, email address, (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers for number(s) representing such shares, (iv) the shares held by such Shareholder, the date respective date(s) of acquisition of such shares, (v) the Pro Rata Portion applicable to such Person, (vi) the aggregate amount of cash and shares of Parent Common Stock to be paid to such Person at the Closing in respect of such shares, (vii) the amount of cash shares of Parent Common Stock retained by Parent in respect of the Escrow Amount, respectively, (viii) any amounts required to be issued withheld, (ix) the identification of any shares that were eligible for an election under Section 83(b) of the Code, including the date of issuance of such shares, and whether such election under Section 83(b) of the Code was timely made and (x) such other information relevant thereto or that Parent may reasonably request; and
(b) with respect to each holderholder of a Company Option, (i) such Person’s name and address, (ii) the number of shares of Company Capital Stock underlying each Company Option held by such Person, (iii) the respective grant date(s) of such Company Options, (iv) the respective exercise price(s) per share of such Company Options, (v) the respective vesting arrangement(s) with respect to such Company Options, (vi) whether such Company Options are incentive stock options or non-qualified stock options, and (vii) such other information relevant thereto or that Parent may reasonably request.
(c) As applicable, the amount Spreadsheet shall also include, with respect to each holder of cash to shares of Company Capital Stock issued on or after January 1, 2011 or any other security that, in each case, would be deposited into deemed a “covered security” under Treasury Regulation § 1.6045-1(a)(15), the Escrow Fund on behalf cost basis and date of each Shareholder, and issuance of such Shareholder's Pro Rata Portion percentageshares or securities.
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
Spreadsheet. The Company shall deliver to Parent Purchaser and Mellon Investor Services LLC (the “Exchange Agent”) three (3) Business Days prior to the Closing Date a spreadsheet (the "“Spreadsheet"”) signed substantially in the form attached hereto as Schedule 5.17, which spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the Company, the and Chief Financial Officer of the CompanyCompany as of the Closing and which shall include, and among other things, as of the Closing: with respect to each Shareholder, which shall separately list(a) such Person’s address and social security number (or tax identification number, as applicable), (ib) all Third Party Expenses to be paid out the number of the Total Considerationshares of Scheme Shares held by such Person (including whether such shares are Company Ordinary Shares, listing each person separately that shall receive a payment of Third Party expenses at ClosingCompany Series A Preference Shares, the address (and contact person) for such paymentCompany Series A-1 Preference Shares, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separatelyCompany Series A-2 Preference Shares, the address Company A-3 Preference Shares or the Company Series B Preference Shares), (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (ivc) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; respective certificate number(s) representing such shares, (vd) the amount of Net Total Consideration; and whether such shares constitute Company Unvested Common Stock (vi) including, for each Shareholder, such Shareholder's addresscertificate, the number of shares that are vested as of the Closing), (e) the liquidation preference and conversion ratio applicable to each share of Company Capital Stock held by such ShareholderPreference Shares, the certificate numbers for the shares held by such Shareholder, (f) the date of acquisition of such shares, (g) the amount Pro Rata Portion applicable to such Person, (h) the number of cash shares of Purchaser Common Stock to be issued and Contingent Rights to be issued to each holderholder pursuant to Section 1.6, (i) the amount number of cash Purchaser Shares, if any, to be deposited into paid by the Escrow Fund on behalf Shareholder in settlement of each Shareholdertax withholding obligations pursuant to Section 1.6 and outstanding Shareholder loans pursuant to Section 1.6, and (j) such Shareholder's Pro Rata Portion percentageother information relevant thereto or which the Exchange Agent may reasonably request.
Appears in 1 contract
Spreadsheet. The Company shall deliver to Parent three (3) Business Days prior to the Closing Date a spreadsheet (the "“Spreadsheet"”) signed by the President and Chief Executive Officer of the Company, the Chief Financial Officer of the Company, and each Shareholderin a form reasonably acceptable to Parent, which shall separately listinclude, among other things, as of the Closing:
(a) with respect to each Company Shareholder, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address and, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached if available to the Spreadsheet Company, social security number (the "Third Party Payments"or tax identification number, as applicable); , (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers for number(s) representing such shares, (iv) the shares held by such Shareholder, the date respective date(s) of acquisition of such shares, (v) the Pro Rata Portion applicable to such Person, (vi) the Shareholder Pro Rata Portion applicable to such Person (vii) the aggregate amount of cash to be issued paid to each holdersuch Person at the Closing in respect of such shares, (viii) the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholdersuch Person in respect of the Indemnification Escrow Amount, (viii) the amount of cash to be deposited into the Escrow Fund on behalf of such Person in respect of the Working Capital Escrow Amount, (ix) the amount of cash to be paid to the Shareholder Representative on behalf of such Person in respect of the Holdback Amount, (x) whether any amounts required to be withheld and if so, the amount of such withholdings, and (xi) the identification of any shares that were eligible for an election under Section 83(b) of the Code, including the date of issuance of such Shareholder's shares, and whether such election under Section 83(b) of the Code was timely made; and
(b) with respect to each holder of a Company Option, (i) such Person’s address and, if available to the Company, social security number (or tax identification number, as applicable), (ii) the number of shares of Company Capital Stock underlying each Company Option held by such Person, (iii) the respective grant date(s) of such Company Options, (iv) the respective exercise price(s) per share of such Company Options, (v) whether such Company Options are incentive stock options or non-qualified stock options, (vi) the Pro Rata Portion percentageapplicable to such Person, (vii) the amount of cash to be deposited into the Escrow Fund in respect of the Indemnification Escrow Amount, (viii) the amount of cash to be deposited into the Escrow Fund on behalf of such Person in respect of the Working Capital Escrow Amount, (ix) the amount of cash to be paid to the Shareholder Representative on behalf of such Person in respect of the Holdback Amount, (x) the aggregate amount of cash to be paid to such Person at the Closing in respect of such Company Option, and (xi) whether any amounts are required to be withheld and if so, the amount of such withholdings.
Appears in 1 contract
Spreadsheet. The Company shall deliver to Parent Schedule 6.4 sets forth a spreadsheet (the "“Spreadsheet"”) signed by the President and Chief Executive Officer which includes, among other things, as of the Company, the Chief Financial Officer of the Company, and Closing Date:
(a) with respect to each Shareholder, which shall separately listCompany Stockholder, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address and, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached if available to the Spreadsheet Company, social security number (the "Third Party Payments"or tax identification number, if applicable); , (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers for the shares held by such Shareholder, the date of acquisition of number(s) representing such shares, (iv) the Pro Rata Portion applicable to such Person, (v) the aggregate amount of cash to be issued paid to each holdersuch Person at the Closing in respect of such shares, and (vi) the amount of cash to be deposited into the Escrow Fund and the Stockholders’ Representative Fund on behalf of such Person;
(b) with respect to each Shareholderholder of Company Options, (i) such Person’s address and, if available to the Company, social security number (or tax identification number, if applicable), (ii) the number of shares of Company Capital Stock underlying each Company Option held by such Person, (iii) the respective grant date(s) of such Company Options, (iv) the respective exercise price(s) per share of such Company Options, (v) whether such Company Options are incentive stock options or non-qualified stock options, (vi) the aggregate amount of cash to be paid to such Person at the Closing in respect of Vested Company Options, (vii) the amount of cash to be deposited into the Escrow Fund and the Stockholders’ Representative Fund on behalf of such Person at the Closing in respect of Vested Company Options, and (viii) any amounts required to be withheld for Taxes at the Closing with respect to such Shareholder's Pro Rata Portion percentagepayment;
(c) with respect to each Management Acquisition Bonus Plan Participant, (i) such Person’s address and social security number, (ii) the aggregate amount of cash to be paid to such Person at the Closing pursuant to the Management Acquisition Bonus Plan, (iii) the amount of cash to be deposited into the Escrow Fund and the Stockholders’ Representative Fund on behalf of such Person at the Closing in respect of their allocation of the Management Acquisition Bonus Plan, and (iv) any amounts required to be withheld for Taxes at the Closing with respect to such payment; and
(d) with respect to each Bridge Debt Lender, (i) such Person’s address and, if available to the Company, social security number (or tax identification number, if applicable), (ii) the amount of principal and interest owed to such Bridge Debt Lender pursuant to the Bridge Debt; (iii) the aggregate amount of cash to be paid to such Bridge Debt Lender at the Closing in respect of such Bridge Debt, and (iv) any amounts required to be withheld for Taxes at the Closing with respect to such payment.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Spreadsheet. The At the Closing, the US Company shall deliver to Parent Purchaser a spreadsheet (in a form reasonably acceptable to Purchaser, which shall include the "Spreadsheet") signed following information set forth below and shall be certified as complete, true and correct as of the Closing Date by the President and Chief Executive Officer of the Company, US Company (the Chief Financial Officer “Spreadsheet”): (a) with respect to each holder of the Company, and each Shareholder, which shall separately listCommon Shares, (i) all Third Party Expenses such Person’s name, domicile address (and if different, last known mailing address) and, if available to the US Company, social security number (or tax identification number, as applicable) and email address, (ii) the Common Shares held by such Person, (iii) the respective certificate number(s) representing such Common Shares, (iv) the respective date(s) of acquisition of such Common Shares, (v) the Common Share Closing Payment to be paid out and issued to such Person in respect of such holder’s Common Shares, (vi) the US Pro Rata Portion for such holder in respect of the Total ConsiderationCommon Shares, listing each person separately that shall receive a (vii) any amount required to be withheld from any payment of Third Party expenses at Closing, to be made hereunder (including the address (employer withholding taxes) and contact person) for such payment, the net cash amount to be paid to such personPerson as a result of any such withholding amount, (viii) whether any such Common Shares are “covered securities” (as defined in §6045 of the Code), and copies if so, the acquisition price of all invoices regarding such Third Party expenses owing Common Shares, (ix) any outstanding Equityholder Loan and the amount thereunder to be repaid at Closing, and (x) such person shall be attached other relevant information that Purchaser may reasonably require; and (b) with respect to each holder of Indian Shares, (i) such Person’s name, domicile address (and if different, last known mailing address) and, if available to the Spreadsheet Company, PAN number (the "Third Party Payments"); or tax identification number, as applicable) and email address, (ii) all Contingent the Indian Shares held by such Person, (iii) the respective certificate number(s) representing such Indian Shares, (iv) the respective date(s) of acquisition of such Indian Shares, (v) the Indian Share Closing Payments Payment to be paid at closingto such Person in respect of such holder’s Indian Shares, listing each person who shall receive a Contingent Closing Payment separately, (vi) any amount required to be withheld from any payment to be made hereunder (including the address (employer withholding taxes) and contact person) for such payment; wire instructions for such person, the net cash amount to be paid to such personPerson as a result of any such withholding amount, (vii) whether any such in respect of the Indian Shares are “covered securities” (as defined in §6045 of the Code), and a description if so, the acquisition price of such in respect of the nature of the contingent payment Indian Shares, (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iiiviii) all UAP Participants who shall receive a UAP Payment at Closing, any outstanding Equityholder Loan and the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required thereunder to be paid in connection with the Contingent repaid at Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (viix) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such Shareholder, the certificate numbers for the shares held by such Shareholder, the date of acquisition of such shares, the amount of cash to be issued to each holder, the amount of cash to be deposited into the Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion percentageother relevant information that Purchaser may reasonably require.
Appears in 1 contract
Spreadsheet. The Company shall prepare and deliver to Parent Acquirer, in accordance with Section 5.12, a spreadsheet (the "“Spreadsheet"”) signed in the form provided by Acquirer prior to the President Closing and Chief Executive Officer reasonably acceptable to Acquirer, which spreadsheet shall be dated as of the Company, the Chief Financial Officer Closing Date and shall set forth all of the Companyfollowing information (in addition to the other required data and information specified therein), as of immediately prior to the Closing: (a) the names of all the Company Stockholders and each ShareholderCompany Optionholders and their respective addresses, which shall separately liste-mail addresses and taxpayer identification numbers, (ib) all Third Party Expenses to be paid out of the Total Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderCompany Stockholder, (c) the number of shares of Company Capital Stock subject to each option held by each such Company Optionholders, (d) the calculation of the Merger Consideration, Indebtedness (including the EIDL Loan Balance and PPP Escrow Amount), Transaction Expenses, the certificate numbers for amount, if any, by which the Closing Net Working Capital Target exceeds Company Net Working Capital as set forth in the Company Closing Financial Certificate (which may be a negative number), Adjustment Amount, Stock Consideration, Cash Consideration, Per Unit Cash Consideration and Per Unit Stock Consideration, (e) the calculation of aggregate cash amounts and number of shares held by of Acquirer Common Stock payable and issuable, respectively, to each such ShareholderCompany Stockholder pursuant to Section 1.3(a), and Company Optionholder pursuant to Section 1.3(b), and the total amount of Taxes to be withheld therefrom (including, if applicable, the date number of acquisition shares of such shares, the amount of cash Acquirer Common Stock to be issued to withheld), and (f) the calculation of each holder, the amount Contributing Equityholder’s Pro Rata Share of cash to be deposited into the Escrow Fund on behalf Amount (including the portion of each Shareholder, the PPP Escrow Amount and such Shareholder's Pro Rata Portion percentagethe Indemnity Escrow Amount).
Appears in 1 contract
Sources: Merger Agreement (Logiq, Inc.)
Spreadsheet. The Prior to the execution of this Agreement, the Company has delivered to Parent the Company's reasonable estimates of the calculation of the Merger Consideration and the distribution of the Stock Merger Consideration and the Cash Merger Consideration among the Company Stockholders, Company Option Holders, Company Warrant Holders, Company Convertible Debt Holders and MIP Holders, based on the Parent Stock Price determined as of the day of the preparation of such estimated Spreadsheet. No later than one (1) Business Day prior to the Closing Date, the Company shall deliver to Parent a an updated spreadsheet (the "Spreadsheet") signed ), which Spreadsheet shall be certified as complete and correct by the President and Chief Executive Officer of the Company, the Chief Financial Officer of the Company, Company as of the Closing and each Shareholder, which shall separately listinclude, among other things, as of the Closing:
(a) with respect to each Company Stockholder, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person's address, listing each person separately that shall receive a payment of Third Party expenses at Closing, the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Stock held by such ShareholderPerson, (iii) the respective certificate numbers for number(s) representing such shares, (iv) the shares held by such Shareholder, the date respective date(s) of acquisition of such shares, (v) such Person's Escrow Pro Rata Fraction and Indemnity Pro Rata Fraction, (vi) the amount aggregate number of cash shares of Parent Common Stock or the portion of Cash Merger Consideration to be issued paid to each holdersuch Person at the Closing in respect of such shares, and (vi) the amount number of cash shares of Parent Common Stock to be deposited into the Escrow Fund on behalf of such Person;
(b) with respect to each ShareholderCompany Optionholder, (i) such Person's address, (ii) the number of shares of Company Common Stock underlying each Company Option held by such Person, (iii) the respective grant date(s) of such Company Options, (iv) the respective exercise price(s) per share of such Company Options, (v) the number of shares of Company Common Stock underlying each Company Option held by such Person that have vested as of immediately prior to Closing; (vi) the number of shares of Company Common Stock underlying each Company Option that have not vested as of immediately prior to Closing; and (vii) the respective vesting arrangement(s) with respect to such Company Options, (viii) whether such Company Options are incentive stock options or non-qualified stock options, (ix) the aggregate number of shares of Parent Common Stock such assumed Company Option will become exercisable for and the applicable exercise price per share of Parent Common Stock, in each case, immediately after the Effective Time, and (x) whether or not such ShareholderCompany Option is an Out-of-the-Money Option.
(c) with respect to each holder of Company Warrants, (i) such Person's address, (ii) the number of shares of Company Capital Stock into which the Company Warrant held by such Person is exercisable, (iii) such Person's Escrow Pro Rata Portion percentageFraction and Indemnity Pro Rata Fraction, (iv) the aggregate number of shares of Parent Common Stock to be paid to such Person at the Closing in respect of such shares, and (v) the number of shares of Parent Common Stock to be deposited into the Escrow Fund on behalf of such Person;
(d) with respect to each Company Convertible Debt Holder, (i) such Person's address, (ii) the amount of Company Convertible Debt held by such Person, (iii) the number of shares of Company Capital Stock into which the Company Convertible Debt held by such person is convertible, (iv) such Person's Escrow Pro Rata Fraction and Indemnity Pro Rata Fraction, (v) aggregate number of shares of Parent Common Stock to be paid to such Person at the Closing in respect of such Company Convertible Debt, and (vi) the number of shares of Parent Common Stock to be deposited into the Escrow Fund on behalf of such Person; and
(e) with respect to each recipient of Management Incentive Plan Shares, (i) such Person's address, (ii) such Person's Escrow Pro Rata Fraction and Indemnity Pro Rata Fraction, (vi) the aggregate number of shares of Parent Common Stock and the portion of Cash Merger Consideration to be paid to such Person at the Closing in accordance with the Management Incentive Plan, and (vi) the number of shares of Parent Common Stock to be deposited into the Escrow Fund on behalf of such Person, if any. For illustrative purposes, and to aid in the interpretation of this Agreement, Part 4.4 of the Company Disclosure Schedule sets forth a sample Spreadsheet reflecting the illustrative calculations of: (A) the value of the Merger Consideration at Closing based on several different assumed values of the Parent Stock Price; (B) the amount of the Stock Merger Consideration and the Cash Merger Consideration based on each such Parent Stock Price; (c) the aggregate dollar value payable to MIP Participants based on each such Parent Stock Price; (d) the number of shares placed in the Escrow Fund based on each such Parent Stock Price; and (e) the number of Company Options that will be Assumed Options and the aggregate number of shares of Parent Common Stock such Assumed Options will become exercisable for and the applicable exercise price per share of Parent Common Stock, in each case, based on each such Parent Stock Price.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Millennial Media Inc.)
Spreadsheet. The No less than three Business Days prior to Closing, the Company shall prepare and deliver to Parent Acquirer a spreadsheet (the "Spreadsheet") signed ), which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing, and shall be updated by the President Shareholders’ Agent, to the extent necessary, prior to any payment or release of funds to the Company Securityholders following the Closing:
(a) the names of all Company Shareholders, Company Optionholders and Chief Executive Officer Company Warrantholders, and their respective street and e-mail addresses, Israeli identification number (if any) or any other identification number registered in the Company’s shareholders register;
(b) the number, class and series of Company Shares held by such Persons and the respective certificate numbers;
(c) the number, class and series of Company Shares subject to, and if applicable, the exercise price per share in effect for, each Company Option and Company Warrant;
(d) the vesting status and schedule;
(e) for each Company Option that was exercised prior to the date of delivery of the CompanySpreadsheet, the Chief Financial Officer date of such exercise and whether such Company Option was granted pursuant to Section 3(i) of the CompanyOrdinance or Section 102 of the Ordinance (and the applicable subsection of Section 102 of the Ordinance), and each ShareholderSection 422 of the Code, which shall separately list, or any applicable foreign Tax law;
(f) the calculation of the (i) all Third Party Expenses to be paid out Aggregate Consideration, (ii) the respective portion of the Total Aggregate Consideration, listing each person separately that shall receive a payment of Third Party expenses at Closing, including the address (and contact person) for such payment, the amount Adjustment Escrow Amount to be paid to such personeach Company Shareholder, each Company Optionholder, and copies of all invoices regarding each Company Warrantholder (each such Third Party expenses owing to such person shall be attached to the Spreadsheet (portion, the "Third Party PaymentsConsideration Portion"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closingthe Company Series A Shares, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; Company Series B Shares, (v) the amount of Net Total Consideration; and Company Series C Shares, (vi) for each Shareholderthe Company Series D Shares, such Shareholder's address(vii) the Company Series E Shares, (viii) the Fully-Diluted Company Ordinary Shares, (ix) the Fully-Diluted Company Shares, (x) the Ordinary Shares Per Share Payment Amount, (xi) in respect of Company Employees who hold Unvested Company Options, the number of shares Option Cash Rights, and (xii) each Indemnifying Party’s Pro Rata Share of Company Capital Stock held by such Shareholder, the certificate numbers for the shares held by such Shareholder, the date of acquisition of such shares, the amount of cash to be issued to each holder, the amount of cash to be deposited into the Indemnity Escrow Fund on behalf of each Shareholder, and such Shareholder's Pro Rata Portion the Shareholders’ Agent Expense Amount (expressed in both in dollars and as a percentage); and
(g) a funds flow memorandum setting forth applicable wire transfer instructions.
Appears in 1 contract
Sources: Share Purchase Agreement (National Instruments Corp)
Spreadsheet. The Company shall deliver to Parent and the Exchange Agent not less than three (3) Business Days prior to the Closing Date a spreadsheet (the "“Spreadsheet"”) signed in a form reasonably acceptable to Parent, which spreadsheet shall be certified as true, complete and correct by the President and Chief Executive Officer of the Company, the and Chief Financial Officer of the CompanyCompany pursuant to an Officer Certification as of the Closing and which shall include, and among other things, as of the Closing:
(a) with respect to each Shareholder, which shall separately list, (i) all Third Party Expenses to be paid out of the Total Considerationsuch Person’s address and social security number (or tax identification number, listing each person separately that shall receive a payment of Third Party expenses at Closingas applicable), the address (and contact person) for such payment, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description of the nature of the contingent payment (provided that for purposes of this Agreement, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closing, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; and (vi) for each Shareholder, such Shareholder's address, the number of shares of Company Capital Transferred Stock held by such ShareholderPerson (including whether such shares are Company Common Stock or Company Series A Preferred Stock), (iii) the respective certificate numbers for number(s) representing such shares, (iv) the shares held by such Shareholderliquidation preference and conversion ratio applicable to each share of Company Preferred Stock, (v) the date of acquisition of such shares, (vi) the Pro Rata Escrow Portion applicable to such Person, (vii) the amount of cash to be issued paid to each holderholder pursuant to Section 1.6, (viii) the amount of cash, if any, to be paid by the Shareholder in settlement of tax withholding obligations pursuant to Section 1.6(e) and outstanding Shareholder loans pursuant to Section 1.6(f), and (xi) such other information relevant thereto or which the Exchange Agent may reasonably request.
(b) with respect to each holder of a Company Option, (i) such Person’s address and social security number (or tax identification number, if applicable), (ii) the number of shares of Company Transferred Stock underlying each Company Option held by such Person, (iii) the respective grant date(s) of such Company Options, (iv) the respective exercise price(s) per share of such Company Options, (v) whether such Company Options are incentive stock options or non-qualified stock options, (vi) the amount of cash to be deposited into paid to each holder pursuant to Section 1.6, (vii) the Escrow Fund on behalf amount of each Shareholdercash, if any, to be paid by such holder in settlement of tax withholding obligations pursuant to Section 1.6(e), and (viii) such Shareholder's Pro Rata Portion percentageother information relevant thereto or which the Exchange Agent may reasonably request; and
(c) with respect to each holder of a Company Warrant, (i) such Person’s address, (ii) the number of shares of Company Transferred Stock underlying each Company Warrant held by such Person, (iii) the respective issuance date(s) of such Company Warrants, (iv) the respective vesting arrangement(s) with respect to such Company Warrants, (v) the amount of cash to be paid to each holder pursuant to Section 1.6, (vi) the amount of cash, if any, to be paid by such holder in settlement of tax withholding obligations pursuant to Section 1.6(e), and (vii) such other information relevant thereto or which the Exchange Agent may reasonably request.
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Spreadsheet. The Not less than three (3) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (setting forth the "Spreadsheet") signed following information, in form and substance reasonably satisfactory to Parent and accompanied by documentation reasonably satisfactory to Parent in support of the calculation of the information set forth therein, certified as true, correct and complete as of the Closing Date by the President and Chief Executive Officer of the Company, the and Chief Financial Officer of the CompanyCompany (the “Spreadsheet” and the related certificate, the “Spreadsheet Certificate”):
(a) calculation of the Total Consideration and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness and Third Party Expenses;
(b) calculation of the applicable Per Share Consideration for each Shareholder, which shall separately list, class or series of Company Capital Stock;
(c) with respect to each Stockholder: (i) all Third Party Expenses to be paid out the name of the Total Considerationsuch holder, listing each person separately that shall receive a payment of Third Party expenses at Closingand, if available, the e-mail address (and contact person) for of such paymentholder, the amount to be paid to such person, and copies of all invoices regarding such Third Party expenses owing to such person shall be attached to the Spreadsheet (the "Third Party Payments"); (ii) all Contingent Closing Payments to be paid at closing, listing each person who shall receive whether such holder is a Contingent Closing Payment separately, the address (and contact person) for such payment; wire instructions for such person, the amount to be paid to such person, and a description current or former employee of the nature of the contingent payment (provided that for purposes of this AgreementCompany, the items identified on the Spreadsheet as employee bonus payments shall be treated as Contingent Closing Payments hereunder); (iii) all UAP Participants who shall receive a UAP Payment at Closingthe number, the amount of such UAP Payment, the address of the UAP Participant; (iv) the amount of any employer Taxes required to be paid in connection with the Contingent Closing Payments or the payments to the UAP Participants; (v) the amount of Net Total Consideration; class and (vi) for each Shareholder, such Shareholder's address, the number series of shares of Company Capital Stock held by such Shareholderholder and the respective certificate numbers, the certificate numbers for the shares held by such Shareholder, (iv) the date of acquisition of such shares, (v) the amount initial purchase price of cash any such shares that constitute a “covered security” within the meaning of Treasury Regulations Section 1.6045-1(a)(15), (vi) whether any Taxes are to be issued withheld in accordance with Section 1.8 from the consideration that such holder is entitled to each receive pursuant to Section 1.6(b)(i), (vii) the Pro Rata Portion of such holder, (viii) the amount of cash to be deposited into the Escrow Fund and the Expense Fund on behalf of each Shareholdersuch holder pursuant to this Agreement, and (ix) such Shareholder's Pro Rata Portion percentageother additional information which Parent may reasonably request; and
(d) with respect to each Company Option: (i) the name of the holder thereof, and, if available, the e-mail address of such holder, (ii) whether such holder is an employee, consultant, director or officer of the Company, (iii) the grant date and expiration date thereof, (iv) whether such Company Option was granted pursuant to the Plan, (v) the extent to which such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option immediately prior to the Closing, (vii) whether such holder is a Continuing Employee or a Non-Continuing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the exercise price per share of such Company Option following the Closing in accordance with Section 1.6(c), (ix) the cash consideration that such holder is entitled to receive in accordance with Section 1.6(c), and (x) such other information which Parent may reasonably request.
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