Amendments to the Merger Agreement. (a) The third recital to the Merger Agreement is hereby amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal to the ADS Ratio”. (b) The first sentence of Section 2.1(c)(i) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time (other than the Excluded Shares) (collectively, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stock, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).” (c) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratio”. (d) Section 2.3(e) of the Merger Agreement is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)”. (e) Section 2.4(a) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (whether or not then vested or exercisable) (each, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Option immediately prior to the First Effective Time and (ii) (A) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.” (f) Section 2.4(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each restricted stock unit with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (collectively, the “Company RSUs”) shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.” (g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) above.” (h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”. (i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
Appears in 1 contract
Amendments to the Merger Agreement. The Merger Agreement (as amended by the Second Amendment) is hereby further amended as set forth below in this Section 1. US 885830947369092.3
(a) The third recital to Section 2.08 of the Merger Agreement is hereby further amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal to provide that, notwithstanding anything to the ADS Ratio”.contrary in the Merger Agreement or the Second Amendment, the deadline for the Sellers’ Representative to deliver the Objections Statement to Buyer is extended to June 10, 2022.
(b) Section 2.08 of the Merger Agreement is hereby further amended to provide that, notwithstanding anything to the contrary in the Merger Agreement or the Second Amendment, the Objections Statement delivered by the Sellers’ Representative shall take into account all adjustments for activities by the Company and its Subsidiaries through May 31, 2022 relating to the balances of the Company and its Subsidiaries existing as of the Reference Time, including (i) any adjustments to accounts payable of the Company existing as of the Reference Time and (ii) increases to the calculation of Closing Net Working Capital, on a dollar for dollar basis, for the amount of outstanding accounts receivable of the Company existing as of the Reference Time (x) for which any payment is received by the Company by May 31, 2022, or (y) that are, no later than by May 31, 2022, validated or otherwise acknowledged in writing by the relevant customer to be a valid obligation of such customer together with a confirmation that such accounts receivable will be paid by June 15, 2022, in a form reasonably acceptable to Buyer (but such amounts will be disregarded to the extent not actually collected by June 15, 2022); provided, that in no event will the resulting final Closing Merger Consideration from the Objections Statement be less than the final Closing Merger Consideration set forth on the Amended Preliminary Closing Statement, provided, further, that the resulting final Closing Merger Consideration shall be determined in accordance with Section 2.08 of the Merger Agreement as modified by the framework agreed in this Amendment.
(c) The first sentence of reference to “30 days” in Section 2.1(c)(i2.08(c) of the Merger Agreement is hereby amended and restated in its entirety as follows: to read “Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time 60 days (other than the Excluded Shares) (collectivelyor, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stockif later, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS RatioJune 30, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).”
(c) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratio”.
(d) Section 2.3(e) of the Merger Agreement is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i2022)”.
(e) Section 2.4(a) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (whether or not then vested or exercisable) (each, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Option immediately prior to the First Effective Time and (ii) (A) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.”
(f) Section 2.4(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each restricted stock unit with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (collectively, the “Company RSUs”) shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) above.”
(h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”.
(i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
Appears in 1 contract
Amendments to the Merger Agreement. (a) The third recital to Section 1.1(c) of the Merger Agreement is hereby amended by replacing adding the words following sentence after the second sentence: “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal In addition, notwithstanding anything to the ADS Ratiocontrary set forth in this Agreement, Merger Sub shall have the right in its sole discretion to extend (or re-extend) the Offer beyond any then-scheduled expiration of the Offer for one or more periods, in consecutive increments of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree) to the extent all of the Offer Conditions have been satisfied or waived and the Debt Financing has not been received by Parent (either directly or through its subsidiaries) and the lenders party to the Debt Commitment Letter have not definitively and irrevocably confirmed to Parent and Merger Sub that the Debt Financing in an amount sufficient to consummate the Offer, the Merger and the other transactions contemplated herein will be available at the Offer Closing on the terms and conditions set forth in the Debt Commitment Letter.”
(b) Section 1.1(c) of the Merger Agreement is hereby further amended by amending and restating sub-clause (A) of clause (i) of the fifth sentence (after giving effect to the addition of the sentence added pursuant to the amendment in section 2(a) above):
(A) either (x) any Offer Condition shall not have been satisfied or waived, or (y) the Debt Financing shall not have been received by Parent (either directly or through its subsidiaries) and the lenders party to the Debt Commitment Letter shall not have definitively and irrevocably confirmed to Parent and Merger Sub that the Debt Financing in an amount sufficient to consummate the Offer, the Merger and the other transactions contemplated herein will be available at the Offer Closing on the terms and conditions set forth in the Debt Commitment Letter, and”.
(bc) The first sentence of Section 2.1(c)(i5.12(f) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: “Each share of Company Common Stock issued Parent and outstanding immediately prior Merger Sub acknowledges and agrees that the obtaining of the Financing is not a condition to the First Effective Time (other than the Excluded Shares) (collectively, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company StockMerger Closing, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with reaffirms its obligations under this Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax)5.12.”
(c) The third sentence of Section 2.3(a) of the Merger Agreement is hereby amended by replacing the words “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratio”.
(d) Section 2.3(e) of the Merger Agreement is hereby amended by replacing the words “the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)”.
(e) Section 2.4(a7.1(c)(iv) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: “Each option that represents the right to acquire shares of Company Common Stock and that is outstanding immediately prior to the First Effective Time (whether or not then vested or exercisable) (each, an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Option immediately prior to the First Effective Time and (ii) (A) (x) all the Offer Conditions shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the Offer Closing) and the Debt Financing has been received by Parent (either directly or through its subsidiaries) or the lenders party to the Debt Commitment Letter have definitively and irrevocably confirmed to Parent and Merger Sub that the Debt Financing in an amount sufficient to consummate the Offer, the Merger and the other transactions contemplated herein will be available at the Offer Closing on the terms and conditions set forth in the case Debt Commitment Letter, in each case, as of Assumed Options the Expiration Date and (y) Parent shall have failed to effect the Offer Closing promptly (and, in respect any event, within three (3) Business Days) thereafter in accordance with Section 1.1(a), or (B) (x) all of Offer Conditions shall have been satisfied or waived as of the Expiration Date (without giving effect to any extension of the expiration date due solely to the failure to obtain Debt Financing), (y) the Marketing Period has ended and (z) Parent ADSsshall have failed to effect the Offer Closing promptly (and, in any event, within three (3) Business Days) after the Exchange Ratio divided by the ADS Ratio later of (x) and (y) of this subclause (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Option immediately prior to the First Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.accordance with Section 1.1(a); or”
(fe) Section 2.4(bThe Financing Proceeds Condition is hereby deleted. Accordingly, paragraph (d) of Annex I of the Merger Agreement is hereby amended and restated in its entirety to read as follows: “Each restricted stock unit with respect to shares of Company Common Stock that is outstanding immediately prior to the First Effective Time (collectively, the “Company RSUs[Intentionally Omitted]; or”) shall at the First Effective Time be converted into a restricted stock unit of Parent (each, an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) . All other references in the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that Financing Proceeds Condition are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) abovehereby deleted.”
(h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”.
(i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
Appears in 1 contract
Amendments to the Merger Agreement. (a) The third recital to the Merger Agreement is hereby amended by replacing the words “each Parent ADS representing one Parent Ordinary Share” with “each Parent ADS representing a number of Parent Ordinary Shares equal to the ADS Ratio”.
(b) The first sentence of Section 2.1(c)(i) of the Merger Agreement is hereby amended and restated in its entirety as follows: “Each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time (other than the Excluded Shares) (collectively, the “Shares”) shall be converted into and become one (1) share of Initial Surviving Company Stock, and each such share of Initial Surviving Company Stock shall immediately thereafter be automatically exchanged for (A) the number of Parent ADSs equal to (1) the Exchange Ratio divided by (2) the ADS Ratio, duly and validly issued against the deposit of the requisite number of underlying Parent Ordinary Shares in accordance with the Deposit Agreement (the “Merger Consideration”) in accordance with Section 2.3(a), (B) cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.3(e) and (C) any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c), in each case without interest (subject to any applicable withholding Tax).”
(c) The third sentence of Section 2.3(a1.03(b)(iii) of the Merger Agreement is hereby amended by replacing adding “80% of” immediately after the words phrase “equal to the number of Parent ADSs issuable pursuant to Section 2.1(c)” with “equal to the product of (A) the number of Parent ADSs issuable pursuant to Section 2.1(c) and (B) the ADS Ratioeach Company Stockholder’s Pro Rata Share of: (1)”.
(db) Section 2.3(e1.04(e) of the Merger Agreement is hereby amended by replacing adding “80% of” immediately after the words phrase “with the Exchange Ratio” with “the Exchange Ratio divided by the ADS Ratio pursuant to Section 2.1(c)(i)Agent”.
(ec) Section 2.4(a2.06(a) of the Merger Agreement is hereby deleted in its entirety and replaced with the following text:
(a) Upon the terms and subject to the conditions of this Agreement, the aggregate consideration to be paid to the Company Stockholders shall be: (i) the product of the Per Share Merger Consideration Value times the total number of Company Common Stock (excluding, for the avoidance of doubt, any Designated Exercised Options) held by the Company Stockholders as of the Effective Time (the “Stockholder Merger Consideration”) and (ii) the contingent right to receive the Earn Out Shares following the Closing in accordance with Article III (collectively, the “Total Stockholder Consideration”).”
(d) Section 2.06(b) of the Merger Agreement is hereby amended by adding “80% of” immediately after the phrase “an amount in cash equal to” and restated immediately after the phrase “such Company Stockholder’s Pro Rata Share of”.
(e) Section 2.07(b)(i) of the Merger Agreement is hereby deleted in its entirety as follows: “Each option that represents and replaced with the following text:
(i) each share of Company Common Stock (other than Excluded Shares, Dissenting Shares and Designated Exercised Options) issued and outstanding at the Effective Time will be cancelled and automatically deemed for all purposes to represent the right to acquire receive a portion of the Total Stockholder Consideration, with each Company Stockholder being entitled to receive (i) its Pro Rata Share of 80% of the Closing Cash Payment Amount, if any; (ii) its Pro Rata Share of the Closing Number of Securities; and (iii) during the Earn Out Period, its Earn Out Pro Rata Share of any Earn Out Shares upon the occurrence of each Triggering Event in accordance with Article III, in each case, without interest, upon surrender of stock certificates representing all of such Company Stockholder’s Company Common Stock (each, a “Certificate”) (or affidavits of loss in lieu of the Certificates as provided in Section 2.10(g)) and delivery of the other documents required pursuant to Section 2.10. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company or the Surviving Corporation, and each Certificate relating to the ownership of shares of Company Common Stock (other than Excluded Shares, Dissenting Shares and Designated Exercised Options) shall thereafter represent only the right to receive the applicable portion of the Total Stockholder Consideration.”
(f) Section 2.08(a) – (d) of the Merger Agreement is hereby deleted in its entirety and replaced with the following text:
(a) Effective as of the Effective Time, each Company Option that is outstanding and unexercised immediately prior to the Effective Time, shall be treated as follows:
(i) Each Cashout Company Option outstanding immediately prior to the First Effective Time (whether will automatically, without any action on the part of any Company optionholder or not then vested or exercisable) (eachbeneficiary thereof, convert into and shall represent the right to receive an “Option”) shall at the First Effective Time be converted into an option (each, an “Assumed Option”) to purchase a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded down to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) amount in cash equal to the product of (iA) the number of shares of Company Common Stock underlying the applicable Cashout Company Option multiplied by (B) the excess, if any, of (x) the Per Share Merger Consideration Value over (y) the applicable exercise price (each such Company optionholder’s “Cashout Company Option Amount”). The Cashout Company Option Amount shall be payable to the Company optionholder, less required withholdings, on the Company’s first payroll date following the Closing, unless such payment must be delayed in order for such payment to comply with or benefit from any Tax treatment. Each holder of a Cashout Company Option as of immediately prior to the Effective Time shall also be entitled to receive its Earn Out Pro Rata Share of any Earn Out Shares upon the occurrence of each Triggering Event in accordance with Article III.
(ii) Each Company Option other than a Cashout Company Option, whether or not then vested or exercisable, shall be assumed by Parent and shall be converted into a stock option (a “Converted Option”) to acquire shares of Parent Class A Stock. Each such Converted Option as so assumed and converted shall continue to have, and shall be subject to, the same terms and conditions as applied to such the Company Option immediately prior to the First Effective Time and (ii) (A) but taking into account any changes thereto provided for in the case applicable Company Stock Plan, in any award agreement or in such Company Option by reason of Assumed Options in respect this Agreement or the Transactions). As of the Effective Time, each such Converted Option as so assumed and converted shall be exercisable for that number of shares of Parent ADSs, Class A Stock determined by multiplying the Exchange Ratio divided number of shares of the Company Common Stock subject to such Company Option immediately prior to the Effective Time by the ADS Ratio and (B) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio, in each case which product shall be rounded down to the nearest whole number of shares, at an a per share exercise price determined by dividing the per share (exercise price of such Company Option immediately prior to the Effective Time by the Exchange Ratio, which quotient shall be rounded up to the nearest whole cent) equal to (x) ; provided, however, that the exercise price per share conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. Each holder of a vested Converted Option as of immediately following the Effective Time shall also be entitled to receive its Earn Out Pro Rata Share of any Earn Out Shares upon the occurrence of each Triggering Event in accordance with Article III.
(iii) As of the Effective Time, all Company Options shall no longer be outstanding and each holder of Converted Options shall cease to have any rights with respect to such Company Options, except as set forth in this Section 2.08(a). The Company shall take all necessary actions to effect the treatment of Company Options pursuant to this Section 2.08(a) in accordance with the Company Stock Plan and the applicable award agreements and to ensure that no Converted Option may be exercised prior to the First effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. Prior to the Effective Time divided by (y) (1) in the case of Assumed Options in respect of Parent ADSsTime, the Exchange Ratio divided by Company shall deliver to each Company optionholder a notice, setting forth the ADS Ratio and (2) in the case of Assumed Options in respect of Parent Ordinary Shares, the Exchange Ratio. Any restrictions on the exercise of any Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including any double-trigger vesting) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the assumption of such Assumed Option.”
(f) Section 2.4(b) of the Merger Agreement is hereby amended on such Company optionholder’s Company Options and restated describing the treatment of such Company Options in its entirety as follows: “accordance with this Section 2.08.
(b) Each restricted stock unit with respect to shares of Company Common Stock Designated Exercised Option that is outstanding immediately prior to the First Effective Time (collectivelywill automatically, without any action on the “Company RSUs”) part of the holder of the Designated Exercised Option or beneficiary thereof, convert into and shall at represent the First Effective Time be converted into a restricted stock unit of Parent (each, right to receive an “Assumed RSU”) with respect to a number of Parent ADSs (or Parent Ordinary Shares, as determined by Parent acting reasonably) (rounded to the nearest number of whole Parent ADSs or Parent Ordinary Shares, as the case may be) amount in cash equal to the product Per Share Merger Consideration Value (with the aggregate amount paid to any holder of (i) Designated Exercised Options to be the number “Designated Exercised Option Amount”). The Designated Exercised Option Amount shall be payable to the applicable holder on the Company’s first payroll date following the Closing, unless such payment must be delayed in order for such payment to comply with or benefit from any Tax treatment. Each holder of shares a Designated Exercised Option as of Company Common Stock subject to such Company RSU immediately prior to the First Effective Time and (ii) (A) in shall also be entitled to receive its Earn Out Pro Rata Share of any Earn Out Shares upon the case of Assumed RSUs in respect of Parent ADSs, the Exchange Ratio divided by the ADS Ratio and (B) in the case of Assumed RSUs in respect of Parent Ordinary Shares, the Exchange Ratio. The vesting schedule (including any double-trigger vesting) and other provisions of such Assumed RSU shall otherwise remain unchanged as a result of the assumption of such Assumed RSU.”
(g) Section 2.6(b) of the Merger Agreement is hereby amended and restated in its entirety as follows: “In the event that, prior to the date of the initial filing of the Form F-4, Parent, acting in good faith (after consulting with and considering in good faith the views of the Company), reasonably determines that it is desirable to issue Parent Ordinary Shares equal to the Exchange Ratio for each outstanding Share as the Merger Consideration in lieu of Parent ADSs to the holders of Shares, the parties hereto agree to negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to reflect such change in the form of the Merger Consideration and provide for other changes necessitated thereby; provided, however, that failure of the parties hereto to agree to such an amendment shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; provided, further, that (i) any actions taken pursuant to this Section 2.6(b) shall not, without the prior written consent occurrence of each of Parent and the Company, (A) alter or change the Exchange Ratio, the ADS Ratio or the amount, nature or mix of the Merger Consideration (or the consideration payable to holders of Options and Company RSUs pursuant to Section 2.4), other than the substitution of Parent Ordinary Shares for Parent ADSs, (B) impose any material economic or other cost on Parent or its shareholders or the Company or its stockholders, (C) adversely affect the Intended Tax Treatment or otherwise result Triggering Event in any material adverse Tax impact to the stockholders of the Company or the parties hereto, (D) prevent or materially delay or impair the receipt of any consents or approvals of, or the completion of any notices to or filings, declarations or registrations with, any Governmental Authority that are necessary for the consummation of the Transactions, or (E) prevent or materially delay or impair the consummation of the Transactions, (ii) any such Parent Ordinary Shares to be issued as the Merger Consideration shall, as of the First Effective Time, have been approved for listing on the NYSE or the NASDAQ, subject only to official notice of issuance and (iii) such amendment would not be expected to have any of the effects or consequences in clauses (i)(A) through (i)(E) aboveaccordance with Article III.”
(h) Section 5.15(a) of the Merger Agreement is hereby amended by replacing the words “that each Parent ADS under the ADR Facility shall represent and be exchangeable for one Parent Ordinary Share ranking pari passu” with “that each Parent ADS under the ADR Facility shall represent and be exchangeable for a number of Parent Ordinary Shares equal to the ADS Ratio and ranking pari passu”.
(i) Section 8.13 of the Merger Agreement is hereby amended by amending and restating the definition of “Exchange Ratio” in its entirety as follows:
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