Consideration Spreadsheet. At least five (5) Business Days prior to the Closing Date, CSC shall deliver to Parent a certificate (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case as of the Closing, of: (a) the aggregate CSC Expenses as of the Closing and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing; (b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing; (c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment; (d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock; (e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i); (f) the number of Fully Diluted Shares; (g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code; (i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and (i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects).
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Sources: Merger Agreement (NeoStem, Inc.)
Consideration Spreadsheet. Concurrently with the execution and delivery of this Agreement, the Company shall deliver to the Acquirer a spreadsheet (the “Estimated Consideration Spreadsheet”), together with reasonable supporting documentation as requested by the Acquirer, certified by the Chief Executive Officer of the Company, setting forth all of the following information (in addition to the other required data and information specified therein) in reasonable detail, as of the Closing Date and immediately prior to the Effective Time: for each of the Converting Holders, the number and kind of shares of Company Capital Stock or subject to the Company Options held by such Converting Holder, or the number of Company Shares underlying each Company Option or Company Warrant held by such Company Securityholders (and in the case of outstanding shares, the respective certificate numbers of such shares), the exercise price per share in effect for each Company Option or Company Warrant, as applicable, the Merger Consideration (including the Per Share Merger Consideration breakdown and a separation between the Aggregate Stock Consideration and Aggregate Cash Consideration), the Excess Holdback Amount, Estimated Closing Cash, Estimated Closing Indebtedness, Estimated Closing Transaction Expenses, the Fully Diluted Company Capital Stock, Indemnity Escrow Amount, the Adjustment Escrow Amount, the Expense Fund Amount, the Indemnity Pro Rata Share, Adjustment Escrow Pro Rata Share and the Pro Rata Share, whether or not such Converting Holder is a Non-Accredited Company Stockholder, with respect to each Holdback Participant its applicable Holdback Amount (separated between the Aggregate Stock Consideration and Aggregate Cash Consideration), with respect to each Company Securityholder its applicable Adjustment Escrow Per Share Amount, Indemnity Escrow Per Share Amount and Expense Fund Per Share Amount (in each case, if applicable), and the calculation of the Cash Consideration Percentage and the Stock Consideration Percentage. The Estimated Consideration Spreadsheet shall also set forth, for any shares of Company Capital Stock acquired upon the exercise of a Company Option that was an “incentive stock option” within the meaning of Section 422 of the Code, whether the disposition of such Company Capital Stock in accordance with this Agreement constitutes a disqualifying disposition (within the meaning of Section 421(b) of the Code) resulting in a Tax reporting obligation with respect thereto. The Estimated Consideration Spreadsheet shall also set forth, for each Company Option, whether the Company is required to withhold employment Taxes with respect to the proceeds in respect of such Company Option under this Agreement. At least five (5) Business Days prior to Closing, the Closing Date, CSC Company shall deliver to Parent a certificate the Acquirer the final Consideration Spreadsheet including the same information as the Estimated Consideration Spreadsheet and certified by the Chief Executive Officer of the Company (the “Consideration Spreadsheet”) signed by ); provided however that the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case as of the Closing, of:
(a) the aggregate CSC Expenses as of the Closing and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as Cash Consideration Percentage and the Stock Consideration Percentage shall not be revised or updated, and the calculation of such percentages in the Estimated Consideration Spreadsheet shall be final and binding. The information contained in the Consideration Spreadsheet is and shall be solely the responsibility of the ClosingCompany; and the Acquirer and Merger Sub shall be entitled to rely exclusively on the allocation and calculations contained in the Consideration Spreadsheet in making payments under Article 1 and Acquirer and Merger Sub shall not be responsible or liable in any way for verifying the information, (ii) a calculation calculations or the determinations regarding such calculations in such Consideration Spreadsheet. At the written request of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown Acquirer, after the delivery of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Estimated Consideration payable as of the Closing Spreadsheet and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form the Company shall make its Representatives available to discuss and substance satisfactory answer questions with respect to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation determination of the Merger amounts set forth in the Estimated Consideration payable to the CSC Stockholders in connection with the Mergers Spreadsheet and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Company shall consider in good faith any comments or revisions the Acquirer may have to the Estimated Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to and the Closing Date shall be consistent in form with such estimate (in all material respects)Consideration Spreadsheet.
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Consideration Spreadsheet. At least five Each Selling Shareholder hereby irrevocably and unconditionally acknowledges and agrees that: (5a) Business Days prior to in the Closing Date, CSC shall deliver to Parent a certificate (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf case of the CSC StockholdersMajority Shareholder, the sole consideration payable to such Majority Shareholder hereunder in respect of its Distributed Interests sold pursuant to this Agreement shall be such Majority Shareholder’s Net Closing Cash Allocation, Majority Shareholder Note, Earn-Out Cash Allocation (2021) and and/or Earn-Out Cash Allocation (2022), as applicable, pursuant to Section 1.3 or Pro Rata Share of the Chief Executive Officer and Purchase Price Underpayment pursuant to Section 1.6(a), as may be reduced by an amount equal to such Majority Shareholder’s Pro Rata Share of the Chief Financial Officer of CSC certifying as to the accuracy and completenessPurchase Price Overpayment, in each case shown in the Consideration Spreadsheet as of the Closing, of:
(a) the aggregate CSC Expenses as of the Closing payable and the wire instructions for each Person issuable to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
such Majority Shareholder; (b) in the aggregate case of each Minority Shareholder, the sole consideration payable to such Minority Shareholder hereunder in respect of its Distributed Interests sold pursuant to this Agreement shall be such Minority Shareholder’s Net Closing IndebtednessCash Allocation, Closing Indebtedness Equity Consideration Allocation, Earn-Out Cash Allocation (2021) and/or Earn-Out Cash Allocation (2022), as applicable, pursuant to Section 1.3 or Minority Pro Rata Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall Purchase Price Underpayment pursuant to Section 1.6(a) and Adjustment Escrow Contribution Amount, as may be due reduced by an amount equal to such Minority Shareholder’s Minority Pro Rata Share of the Purchase Price Overpayment, in each case shown in the Consideration Spreadsheet as payable and payable in connection with the Closing;
issuable to such Minority Shareholder; and (c) (i) a calculation such Selling Shareholder forever waives and discharges any and all rights or claims of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of any kind whatsoever that such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable Selling Shareholder has or may have to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder receive consideration in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account Distributed Interests in excess of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified amount shown as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used Selling Shareholder in the preparation of the Consideration Spreadsheet. For U.S. federal income tax purposes, which Consideration Spreadsheetwith respect to the Company’s obligations, when in form and substance satisfactory to and approved by Parentif any, in its reasonable discretionunder the P▇▇▇▇ ▇▇▇▇▇▇▇ Facility, each Selling Shareholder shall be used treated as though it first received the definitive calculation items of the Merger Consideration payable consideration described in this Section 1.7 or amounts attributable to the CSC Stockholders in connection with P▇▇▇▇ ▇▇▇▇▇▇▇ Facility that reduced his, her or its Net Closing Cash Allocation and then directed the Mergers and Company or Purchaser to apply such consideration for purposes of satisfying such obligations under the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)P▇▇▇▇ ▇▇▇▇▇▇▇ Facility.
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Consideration Spreadsheet. At least five (5) Business Days prior to the Closing Date, CSC shall deliver to Parent a certificate (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case as of the Closing, of:
(a) the aggregate CSC Expenses as of the Closing and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) No later than three Business Days prior to the Closing Date Socrata shall deliver to Tyler a spreadsheet (referred to herein as the “Consideration Spreadsheet”) setting forth the following:
(A) the Estimated Closing Company Cash as set forth on the Estimated Closing Balance Sheet;
(B) the Estimated Closing Working Capital as set on the Estimated Closing Balance Sheet;
(C) the amount of Closing Company Debt and the holders thereof;
(D) the amount of Transaction Expenses and the payees thereof;
(E) a calculation by Socrata of the Total Merger Consideration;
(F) the allocation by Socrata of the Total Merger Consideration, in accordance with Sections 3.1(b) and 3.1(c), among the Stockholders, Participating Warrantholders, and the Participating Optionholders;
(G) the allocation of the Working Capital Holdback among Non-Series C Stockholders, the Participating Warrantholders, and the Participating Optionholders;
(H) the allocation of the Stockholders’ Representative Expense Holdback among Non-Series C Stockholders, the Participating Warrantholders, and the Participating Optionholders;
(I) the allocation of the Closing Merger Consideration among the Stockholders, the Participating Warrantholders, and the Participating Optionholders; and
(J) the Pro Rata Shares of the Non-Series C Stockholders, the Participating Warrantholders, and Participating Optionholders
(ii) The Consideration Spreadsheet shall also set forth any required withholding amounts, in accordance with Section 3.4(g), for any Stockholder or Participating Warrantholders.
(iii) If, after initial delivery of the Consideration Spreadsheet, there shall be consistent any issuances of shares of Socrata Stock upon the exercise of In-Money Warrants or Vested In-Money Option or any transfers of shares of Socrata Stock, Socrata shall promptly, and in form with any event prior to the Closing Date, deliver to a Tyler an appropriately updated Consideration Spreadsheet that reflects such estimate (in all material respects)issuances or transfers.
Appears in 1 contract
Consideration Spreadsheet. At least five (5a) Business Days prior to the Closing Date, CSC The Company shall prepare and deliver to Parent a certificate Stockholder payment spreadsheet (the “Consideration Payment Spreadsheet”) signed ), which shall be certified in writing as complete and accurate by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completenessCompany, in each case as of setting forth the Closing, offollowing information:
(ai) the aggregate CSC Expenses as of the Closing and the wire instructions for with respect to each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;Effective Time Stockholder receiving Merger Consideration:
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (iiA) the number of shares of CSC Common Company Capital Stock subject of each class and series to CSC Options be held by such holder, Effective Time Stockholder as of immediately prior to the Effective Time (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 on a certificate-by-certificate basis and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Codeincluding certificate numbers);
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (ivB) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to such Effective Time Stockholder after the CSC Stockholders deduction of all items described herein in connection respect of all of the shares of Company Capital Stock held by such Effective Time Stockholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis); which shall include (1) the amount of Initial Cash Payment to be received by such Effective Time Stockholder and (2) with respect to the Final Cash Payment, the pro rata distribution allocation to be received by such Effective Time Stockholder upon the final determination of the aggregate amount of such Merger Consideration.
(C) the aggregate Liquidation Preference with respect to each series of Company Capital Stock held by such Effective Time Stockholder;
(D) the Pro Rata Percentage of such Effective Time Stockholder; and
(E) the address of such Effective Time Stockholder where all Merger Consideration payable to such Effective Time Stockholder pursuant to this Agreement shall be mailed by Representative and, if known by the Company, wire transfer information for each such Effective Time Stockholder.
(ii) with respect to each Change in Control Payment Recipient:
(A) the aggregate Change in Control Payment payable to such Change in Control Payment Recipient out of the Initial Cash Payment; and
(B) other than with respect to Change in Control Payments to be processed through payroll, the address of such Change in Control Payment Recipient where all Change in Control Payments payable to such Change in Control Payments pursuant to this Agreement shall be mailed and, if known by the Company, wire transfer information for each such Change in Control Payment Recipient.
(b) The Company has prepared and delivered to Parent a flow of funds spreadsheet (the “Flow of Funds Spreadsheet” which together with the Mergers and Payment Spreadsheet, shall constitute the disbursement thereof. Prior to “Consideration Spreadsheet”) which reflects (consistent with the date hereofinformation set forth in the Preliminary Closing Financial Statements, CSC shall have delivered a best estimate the other portions of the Consideration Spreadsheet, the Payoff Letters and any other Contracts applicable to the following payments): (i) the amounts payable to third parties (including each such third party’s wire instructions) for the full payment of the Transaction Expenses, including without limitation, the Change in Control Payments that remain outstanding at the Effective Time, and (ii) such other information as Parent reasonably requests.
(c) The Company acknowledges and agrees that Representative and its agents shall be entitled to rely on the Consideration Spreadsheet for purposes of making any payments hereunder.
(d) The Company shall prepare in good faith and shall have delivered an estimated Consideration Spreadsheet to be delivered by CSC five Parent at least three (53) Business Days business days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)Date.
Appears in 1 contract
Consideration Spreadsheet. (a) At least five three (53) Business Days prior to before the Closing Dateand concurrently with the delivery of the Estimated Closing Statement, CSC the Company shall prepare and deliver to Parent a certificate spreadsheet (the “Consideration Spreadsheet”) signed in the form attached as Exhibit E, certified by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case as of the ClosingCompany, of:
(a) the aggregate CSC Expenses which shall set forth, as of the Closing Date and the wire instructions for each Person immediately prior to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;following information:
(i) the identity names, addresses and mailing address email addresses of each record holder all Equityholders and the number of a share of CSC Preferred StockCompany Interests held by such Equityholders, and their respective taxpayer identification numbers;
(ii) detailed calculations of the number Merger Consideration and type Cash Closing Payment, taking into account the amounts of share held by each such PersonEstimated Closing Date Debt, (iii) whether such record holder is an Accredited InvestorEstimated Closing Transaction Expenses, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and Estimated Cash, and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holderCapital Payments Amount; and
(iiii) the identity and mailing address amount of the Cash Closing Payment payable at Closing to each record holder Equityholder, the principal amount of a share of CSC Common Stockthe Note to be issued to each Equityholder, (ii) the number of shares held by Consideration Shares to be issued at Closing to each such Person, Equityholder and each Equityholder’s respective Percentage Share.
(iiib) whether such record holder is an Accredited Investor, (iv) The Parties acknowledge and agree that the portion Equityholders shall be solely responsible for the calculation of the Closing Common Stock Consideration consideration payable to such holder pursuant to Section 3.04 2.07 and that Parent and its respective Affiliates (including, Sub and following the CSC Charter as a result Closing, the Company) shall be entitled to rely on the Consideration Spreadsheet in making payments under Section 2.07 and Parent and its Affiliates (including, Sub and following the Closing, the Company) shall not be responsible or have any liability whatsoever for the calculations, allocations or the determinations (or any other matter whatsoever other than for the payment of the First Merger, (vamounts set forth therein in accordance with the terms of this Agreement) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of regarding the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects).
Appears in 1 contract
Consideration Spreadsheet. At least five (5a) Business Days prior to the Closing Date, CSC shall deliver The Company has prepared and delivered to Parent a certificate Shareholder payment spreadsheet in substantially the form attached hereto as Exhibit H (the “Consideration Payment Spreadsheet”) signed ), which shall be certified in writing as complete and accurate by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completenessCompany, in each case as of setting forth the Closing, offollowing information:
(ai) the aggregate CSC Expenses as of the Closing and the wire instructions for with respect to each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;Effective Time Shareholder receiving Merger Consideration:
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (iiA) the number of shares of CSC Common Company Capital Stock subject of each class and series to CSC Options be held by such holderEffective Time Shareholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis and including certificate numbers), the date of acquisition of such shares and, for shares acquired on or after January 1, 2011, the tax basis of such shares;
(iiiB) the Net Option Shares aggregate pro rata portion of the Merger Consideration payable to such Effective Time Shareholder after the deduction of the Transaction Expenses, including, without limitation the Change in Control Payments, in respect of all of the shares of Company Capital Stock held by such Effective Time Shareholder as of immediately prior to the Effective Time (on a certificate-by-certificate basis); which shall include (1) with respect to the Initial Merger Consideration, the amount of Initial Cash Consideration and Stock Consideration to be received by such CSC OptionEffective Time Share Holder and (2) with respect to the Final Cash Payment and the Deferred Payments, if any, the pro rata distribution allocation to be received by such Effective Time Shareholder upon the final determination of the aggregate amount of such Merger Consideration.
(ivC) whether such option holder is an Accredited Investor, the total amount of Taxes required under applicable Laws to be withheld from the portion of the Closing Common Stock Merger Consideration payable that such Effective Time Shareholder is entitled to such holder receive pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares2.1(b), if any;
(v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (viD) the Pro Rata Portion of such holderEffective Time Shareholder; and
(E) the address of such Effective Time Shareholder where all Merger Consideration payable to such Effective Time Shareholder pursuant to this Agreement shall be mailed and, and if known by the Company, wire transfer information for each such Effective Time Shareholder.
(viiii) whether with respect to each Change in Control Payment Recipient receiving cash and/or Parent Common Stock:
(A) the aggregate Change in Control Payment, including the amounts of cash and/or Parent Common Stock, payable to such CSC Option is qualified as an “incentive stock option” under Section 422 Change in Control Payment Recipient out of the CodeInitial Merger Consideration;
(iB) the identity and mailing address pro rata distribution allocation to be paid to such Change in Control Payment Recipient to be received by such Change in Control Payment Recipient upon the final determination of each record holder the aggregate amount of a share of CSC Preferred Stockthe Final Cash Payment or the Deferred Payments, if any, as applicable;
(iiC) the number and type total amount of share held by each Taxes required under applicable Laws to be withheld from the portion of the Change in Control Payment that such Person, (iii) whether such record holder Change in Control Payment Recipient is an Accredited Investor, (iv) the aggregate Liquidation Amount payable entitled to such holder at the Closing receive pursuant to Section 3.04 and the CSC Charter2.1(b), if any;
(v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (viD) the Pro Rata Portion of such holderChange in Control Payment; and
(iE) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration Change in Control Payment Recipient where all Change in Control Payments payable to such holder Change in Control Payments pursuant to Section 3.04 and this Agreement shall be mailed and, if known by the CSC Charter as a result of the First MergerCompany, (v) wire transfer information for each Milestone Paymentsuch Change in Control Payment Recipient.
(b) The Company shall prepare and deliver to Parent a flow of funds spreadsheet (the “Flow of Funds Spreadsheet” which together with the Payment Spreadsheet, shall constitute the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and “Consideration Spreadsheet”) which reflects (consistent with the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation other portions of the Consideration Spreadsheet, which Consideration Spreadsheetthe Payoff Letters and any other Contracts applicable to the following payments): (i) the amounts payable to third parties (including each such third party’s wire instructions) for the full payment of the Transaction Expenses, when including without limitation, the Change in form Control Payments that remain outstanding at the Effective Time, and substance satisfactory to (ii) such other information as Parent reasonably requests.
(c) The Company acknowledges and approved by Parent, in agrees that Parent and its reasonable discretion, agents shall be used as the definitive calculation of the Merger Consideration payable entitled to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and rely on the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)for purposes of making any payments hereunder.
Appears in 1 contract
Consideration Spreadsheet. (a) At least five three (53) Business Days prior to before the Closing Dateand concurrently with the delivery of the Estimated Closing Working Capital Statement, CSC the Company shall prepare and deliver to Parent a certificate spreadsheet (the “Consideration Spreadsheet”) signed ), certified by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as the Company, which shall set forth, immediately prior to the accuracy and completeness, in each case as Effective Time (but after the effective time of the ClosingTaxable Distribution Transaction), ofthe following:
(ai) the aggregate CSC Expenses as names, mailing addresses and email addresses of all Stockholders and the number of Shares held by such Persons;
(ii) the names, mailing addresses and email addresses of all In-Money Optionholders immediately prior to the Effective Time, together with the number of Shares subject to such In-Money Options so held by such In-Money Optionholders, the grant date and exercise price for such In-Money Options;
(iii) detailed calculations of the Closing Merger Consideration, Fully Diluted Share Number, Closing Per Share Merger Consideration and the wire instructions for Excluded Subsidiary Holding Company Portion;
(iv) each Person to whom any portion Stockholder’s and In-Money Optionholder’s Pro Rata Share (as a percentage interest and the interest in dollar terms) of the CSC Expenses shall Closing Merger Consideration;
(v) each Stockholder’s and In-Money Optionholder’s Pro Rata Share (as a percentage interest and the interest in dollar terms) of the amount to be due and payable in connection with contributed to each of the ClosingEscrow Funds; and
(vi) identifying each In-Money Optionholder who is a Company Entity Optionholder or an Excluded Entity Optionholder;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount The parties agree that Parent and the wire instructions for each Person to whom any portion of the Closing Indebtedness Merger Sub shall be due entitled to rely on and payable shall not be responsible for the information set forth in connection with the Closing;Consideration Spreadsheet pursuant to Section 2.18(a)(i) and Section 2.18(a)(ii) above.
(c) (i) a calculation The parties agree that any payments and disbursements of the Liquidation Preference Amount payable Closing Merger Consideration and the Escrow Funds to the Stockholders and In-Money Optionholders as provided in this Agreement and the Escrow Agreement shall be made through the Exchange Agent; provided, that to the extent any Stockholder or In-Money Optionholder is an employee of a Company Entity or Excluded Entity as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full date of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investorpayment or disbursement, the portion of parties agree to cause such amounts to be paid to the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 applicable Company Entity and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, Excluded Entity (vor its designated payroll service provider) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 payment and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable disbursement to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)In-Money Optionholders.
Appears in 1 contract
Sources: Merger Agreement (Aegion Corp)
Consideration Spreadsheet. At least five three (53) Business Days prior to the Closing Date, CSC the Company shall deliver to Parent a certificate spreadsheet in the form attached hereto as Exhibit D (such form, the “Illustrative Consideration Spreadsheet”) signed by reflecting (i) the CSC Representative (on behalf of the CSC Stockholders) Initial Amount and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case as of the Closing, of:
(a) the aggregate CSC Expenses as Company’s good faith estimate of the Closing Excess Cash Amount (including the Company Fees and Expenses and the wire instructions for each Person to whom any portion of the CSC Expenses Closing Net Working Capital Amount), which amounts shall be due consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided if such consent has been withheld and no agreement between the Company and Parent can be reached after good faith negotiations by close of business on the Business Day prior to the Closing Date, the parties shall proceed to Closing on the Closing Date and the Consideration Spreadsheet as initially delivered shall be used for purposes of this Section 2.12(j)(i), (ii) the Aggregate Series B Preference Amount, the Per Share Series B Preference Amount, the Aggregate Series A Preference Amount, the Per Share Series A Preference Amount, the Closing Company Share Number, the Per Share Merger Consideration and the Per Share Shareholders’ Agent Reserve Fund Amount, (iii) the Aggregate Exercise Amount and the amount payable in connection with the Closing;
Closing to each Cashed-Out Holder and holder of Company Investor Options or Company Warrants, (biv) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for with respect to each Person to whom any portion of the Closing Indebtedness shall be due and foregoing items (to the extent applicable), the portion thereof payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing cash and shares of Parent Common Stock payable in respect of each Milestone Payment, (and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Parent Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger be issued in respect of such holder's Net Option Sharesconnection therewith), (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 Effective Time Holder’s Proportionate Share and the CSC Charter on account of amount payable in connection with the achievement of such MilestoneClosing to each Effective Time Holder, (vi) each Effective Time Holder’s physical and e-mail address, (vii) wire instructions for any amounts to be paid on behalf of the Pro Rata Portion of such holderSurviving Corporation pursuant to Section 2.12(i), and (viiviii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 any fees and expenses to be paid from any Milestone Payment or PRV Payment upon direction of the Code;
Shareholders’ Agent pursuant to Section 2.12(i) (i) the identity spreadsheet described in this sentence, the “Consideration Spreadsheet”). The calculations contained in the Consideration Spreadsheet, as delivered by the Company to Parent, shall be made without regard to withholding and mailing address of each record holder of a share of CSC Preferred Stock, (ii) shall be used to determine the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable amounts to such holder be paid at the Closing pursuant to Section 3.04 this Article II (and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as Proportionate Shares of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, Effective Time Holders specified therein shall be used as to allocate payments to be made to or by the definitive calculation Effective Time Holders after the Closing). For the avoidance of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereofdoubt, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet shall not include any payments to be delivered by CSC five (5) Business Days prior to made under the Closing Date shall be consistent in form with such estimate (in all material respects)Series B Additional Purchase Price Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Amicus Therapeutics Inc)
Consideration Spreadsheet. At The Company shall prepare and deliver to the Acquiror, at least five three (53) Business Days prior to before the Closing Date, CSC shall deliver to Parent a certificate spreadsheet (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness), in each case as of the Closing, of:
(a) the aggregate CSC Expenses which spreadsheet shall be dated as of the Closing Date and the wire instructions for each Person to whom any portion signed by an officer of the CSC Expenses Company, and shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion set forth all of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable following information as of the Closing Date:
(i) with respect to each Stockholder (A) the name, address and shares email address of Parent Common Stock payable in respect record of each Milestone Payment, such Stockholder; (B) the number and a breakdown class of Shares held by such Stockholder; (C) the date of issuance of the Shares held by such Stockholder; (D) the Closing Common Stock Per Share Merger Consideration payable owed to such Stockholder; (E) whether (but not the amount of) Tax withholding is required (other than backup withholding); (F) for each “covered security” (as defined in Section 6045 of the Code), the acquisition date and tax basis of such security; (G) such Stockholder’s proportionate share of the Indemnity Escrow Amount (assuming the full Indemnity Escrow Amount is paid to the applicable Company Securityholders); (H) such Stockholder’s proportionate share of the Expense Fund Amount (assuming the full Expense Fund Amount is paid to the applicable Company Securityholders); and (I) such Stockholder’s proportionate share of the Milestone Consideration (assuming the full Milestone Consideration is owed to the applicable Company Securityholders).
(ii) with respect to each holder of CSC Common Stock;
a First Tranche SAFE, (eA) a breakdown the name, address, and email address of record of such holder; (B) the notional number of Shares that would be issued upon conversion of the distribution First Tranche SAFE held by such holder based on the “Conversion Amount” (as defined in such First Tranche SAFEs) in accordance with the terms thereunder; (C) the date of issuance of the CSC Expenses First Tranche SAFE held by such holder; (D) the Purchase Amount and Valuation Cap (each as defined in such First Tranche SAFE) of the First Tranche SAFE held by such holder; (E) such First Tranche SAFE holder’s Indemnity Escrow Fully Diluted Percentage and Expense Fund Fully Diluted Percentage; (F) the Closing Per Share Merger Consideration owed to such holder of such First Tranche SAFE; (G) such holder’s proportionate share of the Indemnity Escrow Amount to each CSC Securityholder, (assuming the distribution thereof pursuant full Indemnity Escrow Amount is paid to Section 8.05(b)(ithe applicable Company Securityholders); (H) such holder’s proportionate share of the Expense Fund Amount (assuming the full Expense Fund Amount is paid to the applicable Company Securityholders); and (I) such holder’s proportionate share of the Milestone Consideration (assuming the full Milestone Consideration is owed to the applicable Company Securityholders);
(fiii) with respect to each holder of a Second Tranche SAFE, (A) the number of Fully Diluted Shares;
(g) (i) the identity name, address, and mailing email address of record of each holder of CSC Options, the holder; (iiB) the number date of shares issuance of CSC Common Stock subject to CSC Options the Second Tranche SAFE held by such holder, ; (iiiC) the Net Option Shares with respect to such CSC Option, Purchase Amount and Valuation Cap (ivas defined therein) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of Second Tranche SAFE held by such holder's Net Option Shares; and (D) the Second Tranche SAFEs Cash Amount and Second Tranche SAFEs Share Amount, (v) for each Milestone Paymentrespectively, the shares of Parent Common Stock payable owed to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;’s Second Tranche SAFE; and
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable name, amount and wiring instructions with respect to such holder at the Closing pursuant to Section 3.04 any Transaction Expenses and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)Payoff Indebtedness.
Appears in 1 contract
Consideration Spreadsheet. At least five (5a) Business Days prior to the Closing Date, CSC shall deliver The Company has prepared and delivered to Parent a certificate spreadsheet attached hereto as Exhibit H (the “Consideration Signing Spreadsheet”) signed ), certified by an authorized Person of the CSC Representative (Company on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completenessCompany, in each case as of the Closing, of:
(a) the aggregate CSC Expenses as of the Closing and the wire instructions setting forth for each Person to whom record Holder of any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;Units or Company Warrants:
(i) the identity and mailing name, address (including email address) and, where available, tax identification number of each record holder of a share of CSC Preferred Stock, such Holder;
(ii) the number and type of share Units held by each such Person, Holder;
(iii) whether with respect to Company Incentive Units, the threshold value for such record holder is an Accredited Investor, Company Incentive Units;
(iv) the aggregate Liquidation Amount payable to number of Company Warrants held by such holder at the Closing pursuant to Section 3.04 Holder and the CSC Charter, exercise price for such Company Warrants;
(v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder holder’s Pro Rata Percentage determined as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and date hereof;
(vi) the Pro Rata Portion amount of cash payable to such holder; andHolder pursuant to Section 2.7 and Section 2.8 as Closing Cash Consideration for its Units and Company Warrants based on the preliminary statement of Net Working Capital as of June 30, 2014 attached as Exhibit I (the “Preliminary NWC Statement”);
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (iivii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Parent Common Stock issuable to such Holder pursuant to Section 2.7 and Section 2.8 as Closing Stock Consideration (and any cash payable to such holder pursuant to Section 3.04 and the CSC Charter as a result in lieu of the First Merger, (vfractional shares of Parent Common Stock) for each Milestone Payment, its Units and Company Warrants;
(viii) the number of shares of Parent Common Stock to be deposited in respect of such Holder’s Units and Company Warrants into the Escrow Fund;
(ix) the amount of cash in respect of such Holder’s Units and Company Warrants to be paid toward the Holder Representative Expense Fund; and
(x) the amount of tax, if any, required by Law to be withheld from any consideration payable to such holder Holder as of the date hereof (including taxes required to be withheld in respect of amounts deposited in the Holder Representative Expense Fund).
(b) Concurrently with the delivery of the Preliminary Closing Statement pursuant to Section 3.06 2.13, the Company shall prepare and deliver to Parent an updated Signing Spreadsheet (as so updated, the CSC Charter on account “Consideration Spreadsheet”), certified by an authorized Person of the achievement Company on behalf of such Milestonethe Company, and that recalculates the information set forth in clause (via) with respect to each Holder based on the Pro Rata Portion of such holderEstimated Net Working Capital. CSC shall give Parent timely access Notwithstanding anything to all supporting workpapers used the contrary in the preparation of the Consideration SpreadsheetCompany LLC Agreement or otherwise, which Consideration Spreadsheetbut subject to Section 2.9, when all amounts and allocations set forth in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (conclusive and binding on all parties. In the event of any inconsistency between the Consideration Spreadsheet and any provision of the Company LLC Agreement or any other document, the Consideration Spreadsheet shall control in all material respects).
Appears in 1 contract
Sources: Merger Agreement (Green Dot Corp)
Consideration Spreadsheet. At least five (5) Business Days prior to the Closing Date, CSC shall deliver to Parent Attached hereto as Exhibit F is a certificate spreadsheet (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf setting forth all of the CSC Stockholdersfollowing information, estimated as of the Closing Date: (a) correct names of all Company Securityholders and their respective addresses, email addresses and taxpayer identification numbers as and to the extent available and reflected in the records of the Company; (b) the amount and type of each Company Security held by each such Company Securityholder, and the correct certificate numbers with respect to each such Company Security; (c) the amount of the Closing Cash Consideration payable to each Company Securityholder in connection with the Closing; (d) the Pro Rata Portion of each Company Securityholder; (e) the manner in which any distribution of the Escrow Amount will be distributed among the Company Securityholders if not in accordance with the Pro Rata Portion, and the manner in which each such distribution will be calculated; (f) the amount of Specified Transaction Expenses (including an itemized list of each such Specified Transaction Expense indicating the general nature of such expense (e.g., legal, accounting, etc.), and the Person to whom such expense is owed) and the Chief Executive Officer wire transfer information of each such Person; (g) the Company Debt Payoff Amount, along with a breakdown by lender, amount of Company Debt and the Chief Financial Officer wire transfer information of CSC certifying as each lender; (h) the aggregate amount of Company Change in Control Payments, along with a breakdown by Person entitled to receive such payment; (i) the accuracy Aggregate Company Option Exercise Price Amount and completeness, in each case the Aggregate Company Option Payment Amount as of the Closing, of:
; (aj) the aggregate CSC Expenses Aggregate Company Warrant Exercise Price Amount as of the Closing and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
Aggregate Company Warrant Payment Amount; (bk) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) Escrow Amount; and (iiil) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of Securityholders’ Representative Amount. In no event will the aggregate Closing Common Stock Consideration amount payable as of the Closing and shares of by Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter set forth on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheetor any update thereto, when in form and substance satisfactory to and approved exceed the Aggregate Closing Merger Consideration, as adjusted by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)Final Adjustment Amount.
Appears in 1 contract
Sources: Merger Agreement (BIO-TECHNE Corp)
Consideration Spreadsheet. (a) At least five (5) Business Days prior to the Closing Date, CSC Seller shall prepare and deliver to Parent Buyer a certificate spreadsheet (the “Consideration Spreadsheet”) signed ), certified by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial an Officer of CSC certifying as to the accuracy and completenessSeller, in each case which sets forth, as of immediately prior to the Closing, ofthe following:
(ai) the names and addresses (including email addresses), and wire instructions of each Seller Stockholder;
(ii) calculations of the Closing Transaction Consideration, the Closing Share Number, the Fully Diluted Share Number, the Per Share Amount, the Per Share Escrow Amount and the Per Share Stockholder Rep Amount;
(iii) the Pro Rata Share of each Seller Stockholder (as a percentage interest), with separate identification of the Closing Transaction Consideration in dollar terms of to be received by each Seller Stockholder;
(iv) the aggregate CSC Expenses as amount in dollar terms to be contributed by each Seller Stockholder to each of the Closing Adjustment Escrow Amount and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the ClosingIndemnity Escrow Amount;
(bv) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and amount in dollar terms to be contributed by each Seller Stockholder to the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the ClosingSeller Stockholder Representative Expense Fund;
(cvi) the names and addresses (iincluding email addresses) of all Seller Optionholders, whether each Seller Optionholder is a calculation current or former employee or an independent contractor, the number of Seller Options held by such Persons, the Liquidation Preference Amount payable as number of the Closingvested and unvested Seller Options held by such Persons, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Seller Option Consideration payable to each holder such Seller Optionholder as well as any applicable Tax withholding and the employer portion of CSC Common Stockany Taxes payable with respect thereto and, with respect to each Seller Optionholder;
(evii) the names and addresses (including email addresses) of all Seller SARs Holders, whether each Seller SARs Holder is a breakdown current or former employee or an independent contractor, the number of Seller SARs held by such Persons, the distribution number of vested and unvested Seller SARs held by such Persons, and the CSC Expenses Escrow Amount Closing Seller SARs Consideration payable to each CSC Securityholder, assuming such Seller SARs Holder as well as any applicable Tax withholding and the distribution thereof pursuant employer portion of any Taxes payable with respect thereto and with respect to Section 8.05(b)(i)each Seller SARs Holder;
(fviii) the number names and addresses (including email addresses) of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Optionsall Seller Warrant Holders, (ii) the number of shares of CSC Seller Common Stock subject to CSC Options Seller Warrants held by such holder, (iii) Persons and the Net Option Shares Closing Seller Warrant Consideration payable to each such Seller Warrant Holder as well as any applicable Tax withholding and the employer portion of any Taxes payable with respect thereto and with respect to such CSC Optioneach Seller Warrant Holder; and
(ix) the names and addresses, (iv) whether such option holder is an Accredited Investorinvoices, the portion and wire instructions of the Closing Common Stock Consideration payable to such holder any recipients of payments by or on behalf of Buyer pursuant to Section 3.04 2.5(b). US-DOCS\131312541.20
(b) The Parties agree that Buyer is and shall be entitled to rely on the CSC Charter Consideration Spreadsheet in making payments under Article II (including as it may be adjusted pursuant to Section 2.9), and that Buyer is and shall not be responsible for the calculations or the determination of the amounts payable as a result of such calculations in such Consideration Spreadsheet or liable to any Person for the First Merger in respect accuracy of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable any payments made to such holder holders in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)accordance therewith.
Appears in 1 contract
Consideration Spreadsheet. (a) At least five (5) Business Days prior to before the Closing Dateand concurrently with the delivery of the Estimated Closing Working Capital Statement, CSC the Company shall prepare and deliver to Parent a certificate spreadsheet (the “Consideration Spreadsheet”) signed ), certified by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case as of the ClosingCompany, of:
(a) the aggregate CSC Expenses which shall set forth, as of the Closing Date and immediately prior to the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited InvestorEffective Time, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;following:
(i) the identity names and mailing address addresses of each record holder all Stockholders and the number of a share of CSC Preferred Stock, Company Stock held by such Persons;
(ii) the names and addresses of all Optionholders and Warrantholders, together with the number and type of share Shares subject to Options or Outstanding Warrants held by each such PersonOptionholders or Warrantholders, the grant date, exercise price and vesting schedule for such Options;
(iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at detailed calculations of the Closing pursuant to Section 3.04 and the CSC CharterMerger Consideration, (v) for each Milestone PaymentFully Diluted Share Number, the aggregate Liquidation Amount payable to such holder as of Preferred Stock Preference, the payment of such Milestone Payment pursuant to Section 3.06 Per Share Preference and the CSC Charter, and (vi) the Pro Rata Portion of such holder; andClosing Per Share Merger Consideration;
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Merger Consideration payable to such holder pursuant to Section 3.04 (as a percentage interest and the CSC Charter as a result interest in dollar terms and number of Merger Shares) each Stockholder, Optionholder and Warrantholder is to receive, after taking into consideration the repayment of the First MergerOption Exercise Notes, if any;
(v) for each Milestone PaymentStockholder's, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 Optionholder's and Warrantholder’s Pro Rata Share (as a percentage interest and the CSC Charter on account interest in dollar terms) of the achievement of such Milestone, and amount to be contributed to the Escrow Fund;
(vi) the each Stockholder's, Optionholder's and Warrantholder’s Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation Share (as a percentage interest) of the Consideration SpreadsheetEarn-Out Payments;
(vii) each Stockholder's, which Consideration SpreadsheetOptionholder's and Warrantholder’s Pro Rata Share (as a percentage interest) of the MIST Payments; and
(viii) each Stockholder's, when in form Optionholder's and substance satisfactory to Warrantholder’s Pro Rata Share (as a percentage interest) of the MIST Shares.
(b) The parties agree that Parent and approved by Parent, in its reasonable discretion, Merger Sub shall be used as the definitive calculation of the Merger Consideration payable entitled to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and rely on the Consideration Spreadsheet to in making payments under Article II and Parent and Merger Sub shall not be delivered by CSC five (5) Business Days prior to responsible for the Closing Date shall be consistent calculations or the determinations regarding such calculations in form with such estimate (in all material respects)Consideration Spreadsheet.
Appears in 1 contract
Consideration Spreadsheet. At least five (5) The Company shall prepare and deliver to Parent, no less than two Business Days prior to the Closing DateClosing, CSC shall deliver to Parent a certificate spreadsheet (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf setting forth all of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completenessfollowing information, in each case as of the Closing, of:
(a) the aggregate CSC Expenses as of the Closing and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) Date: (i) the identity names of all Company Securityholders (and mailing address such other information as the Paying Agent may reasonably request) as reflected in the records of record of each holder of CSC Options, the Company; (ii) the number of shares of CSC Common Stock subject to CSC Options Company Shares, Cashed-Out Options, and Cashed-Out Warrants held by such holder, Company Securityholders immediately prior to the Closing; (iii) the Net Option Shares with respect to amount of Specified Transaction Expenses (including an itemized list of each such CSC OptionSpecified Transaction Expense indicating the general nature of such expense (i.e., (iv) whether such option holder is an Accredited Investorlegal, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 accounting, etc.), and the CSC Charter as a result of the First Merger in respect of Person to whom such holder's Net Option Shares, (vexpense is owed) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account wire transfer information of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, ; (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 amount of Company Debt along with a breakdown by lender, amount of Company Debt and the CSC Charter, wire transfer information of each lender; (v) for each Milestone Paymentthe Aggregate Vested Option Exercise Price Amount, the aggregate Liquidation Aggregate Vested Option Payment Amount, the Aggregate Warrant Exercise Price Amount, the Aggregate Warrant Payment Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and Aggregate Plan Payment Amount; (vi) the amount of Aggregate Merger Consideration payable to each Company Securityholder (subject to the terms and conditions of this Agreement and any Option Termination Agreement or any Warrant Termination Agreement to which such Company Securityholder is a party) in exchange for the Company Shares, Cashed-Out Options Cashed-Out Warrants or the Change of Control Plan Rights held by such Company Securityholder; (vii) the Indemnity Escrow Amount; (viii) the Special Escrow Amount; and (ix) each Company Securityholder’s Pro Rata Portion of such holder; and
the amounts contributed to the Escrow Fund and the Representative Account. Unless otherwise provided herein in Section 1.3(a)(ii), Parent shall make all payments made pursuant to this Agreement in cash by wire transfer of immediately available funds. For the avoidance of doubt, the Applicable Per Share Amount and the amounts that the Company Securityholders are entitled to receive pursuant to Sections 1.3, 1.4, 1.6, 1.7, 1.11 and 1.12 is calculated by allocating the Aggregate Merger Consideration in accordance with (i) the identity and mailing address of each record holder of a share of CSC Common Stockliquidation provisions set forth in the Company Charter, (ii) with respect to each Cashed-Out Option, the number calculation of shares held by each such Personthe Vested Option Payment Amount in accordance with the terms and conditions of this Agreement and the respective Option Termination Agreement, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable with respect to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone PaymentCashed-Out Warrant, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders Company Warrant Payment Amount in connection accordance with the Mergers terms and conditions of this Agreement and the disbursement thereof. Prior to the date hereofrespective Company Warrant Termination Agreement, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects).and
Appears in 1 contract
Consideration Spreadsheet. At least five The Consideration Spreadsheet attached hereto sets forth the name of each Seller, the amount of cash such Seller is entitled to receive at the Closing pursuant to this Section 1.6, the Purchased Subsidiary Membership Interests Purchase Price (5and the methodology of determining such amount) and the portion thereof each holder of vested Purchased Subsidiary Membership Interests is entitled to receive at the Closing pursuant to this Section 1.6, the Installment Payment Retention Amount (and the methodology of determining such amount) and the portion thereof each holder of unvested Purchased Subsidiary Membership Interests is entitled to receive under their respective Installment Payment Retention Agreement (subject to forfeiture in accordance with the terms thereof), each based on the assumptions set forth therein, and sets forth the recipients and amounts of any Closing Payments and Assumed Obligations as of the date hereof. No later than two (2) and no earlier than four (4) Business Days prior to the Closing DateClosing, CSC the Company shall deliver to Parent a certificate the Buyer (i) an updated Consideration Spreadsheet setting forth the “Consideration Spreadsheet”final calculations of the amounts due at the Closing to each Seller pursuant to this Section 1.6 and the Purchased Subsidiary Membership Interests Purchase Price and Installment Payment Retention Amount and the recipients thereof pursuant to the ▇▇▇▇▇ Education Transfer Agreement and the Installment Payment Retention Agreement, and (ii) signed the recipients and amounts of any Closing Payments and Assumed Obligations to be paid by the CSC Representative (on behalf Buyer. Each of the CSC Stockholders) parties hereto acknowledges and agrees that the Chief Executive Officer Consideration Spreadsheet attached hereto sets forth the methodology for allocating the Purchase Price but contains only estimates of the amounts actually payable at Closing. Without limiting the generality of the foregoing, each of the parties hereto acknowledges and agrees that the Chief Financial Officer portion of CSC certifying as the Purchase Price that will be payable to the accuracy and completeness, in each case as Sellers of the ClosingHolding Companies will be the portion of the Purchase Price otherwise allocable to the Non-Purchased Company Membership Interests; provided, of:
that (aA) the aggregate CSC Expenses as Estimated SP Holdings CODI Liability shall reduce the portion of the Closing Purchase Price payable to the Seller of the Stock of SP Holdings (and the wire instructions for each Person to whom not any portion of the CSC Expenses shall be due Purchase Price payable to any other Seller), and payable in connection with the Closing;
(bB) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount Estimated SD Holdings CODI Liability shall reduce the portion of the Purchase Price payable to the Seller of the Stock of SD Holdings (and the wire instructions for each Person to whom not any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration Purchase Price payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respectsany other Seller).
Appears in 1 contract
Sources: Securities Purchase and Sale Agreement (Corinthian Colleges Inc)
Consideration Spreadsheet. (a) At least three (3) Business Days before the Closing and concurrently with the delivery of the Estimated Closing Working Capital Statement, the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”), certified by the chief executive officer or chief financial officer of the Company, which shall set forth, as of the Closing Date and immediately prior to the Effective Time, the following:
(i) the name (and, to the extent reasonably available, the last known address and, if known, email address) of each Company Stakeholder and, for each Company Securityholder, (A) the number, class and series of Company Capital Stock, (B) the number of outstanding Company Options, and the associated exercise price, and/or (C) the number of outstanding Company Warrants, and the associated exercise price, in each case, as applicable to such Company Securityholder;
(ii) calculations of the Closing Merger Consideration, in reasonable detail;
(iii) calculations of the aggregate amount of all Closing Net Option Payments and all Closing Net Warrant Payments, in reasonable detail;
(iv) calculations of the aggregate amount of Change of Control Payments, in reasonable detail (with the understanding that Parent will inform the Company at least five (5) Business Days prior to the Closing Date, CSC shall deliver as to Parent which Employees that are entitled to severance under a certificate (the “Consideration Spreadsheet”) signed by the CSC Representative (on behalf of the CSC Stockholders) written agreement between such Employee and the Chief Executive Officer and the Chief Financial Officer of CSC certifying as to the accuracy and completeness, in each case Company will be terminated as of the Closing, of:and such severance payment will constitute a Change of Control Payment);
(av) the aggregate CSC Expenses as each Company Stakeholders’ applicable portion of the Closing Merger Consideration;
(vi) each Company Stakeholders’ applicable portion (on an estimated basis) of any Earn-out Payment, Escrow Release Amount, and Expense Fund Distribution Amount; and
(vii) the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;Closing Employer Tax Amount.
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by The parties agree that Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration SpreadsheetSub, and the Paying Agent shall be entitled to rely on the Consideration Spreadsheet to in making payments under Article I, and Parent, Merger Sub, and the Paying Agent shall not be delivered by CSC five (5) Business Days prior to responsible for the Closing Date shall be consistent calculations or the determinations regarding such calculations in form with such estimate (in all material respects)Consideration Spreadsheet.
Appears in 1 contract
Consideration Spreadsheet. At least five (5a) Business Days prior to the Closing Date, CSC shall deliver The Company has prepared and delivered to Parent a certificate spreadsheet (the “Consideration Spreadsheet”) signed ), certified by the CSC Representative (on behalf of the CSC Stockholders) and the Chief Executive Officer and the Chief Financial Officer of CSC certifying the Company (solely in his capacity as to the accuracy and completenesssuch), in each case as of the Closingwhich sets forth, of:
(a) the aggregate CSC Expenses as of the Closing and the wire instructions for each Person to whom any portion of the CSC Expenses shall be due and payable in connection with the Closing;
(b) the aggregate Closing Indebtedness, Closing Indebtedness Share Amount and the wire instructions for each Person to whom any portion of the Closing Indebtedness shall be due and payable in connection with the Closing;
(c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f) the number of Fully Diluted Shares;
(g) (i) the identity and mailing address of record of each holder of CSC Options, (ii) the number of shares of CSC Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect to such CSC Option, (iv) whether such option holder is an Accredited InvestorDate, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;following:
(i) the identity name and mailing last known address of all Stockholders and the number, class and series of Capital Stock held by each record holder of a share of CSC Preferred Stock, Stockholder;
(ii) detailed calculations of the number Closing Merger Consideration and type of share held by each such Person, Closing Per Share Merger Consideration;
(iii) whether such record holder is an Accredited Investoreach Stockholder’s Pro Rata Share (as a percentage interest), if any, of (A) the Closing Merger Consideration, (ivB) any Post-Closing Adjustment, (C) any returned Indemnification Escrow Funds, (D) any returned Integration Cost Escrow Funds and (E) any returned Seller Representative Expense Funds.
(b) The parties agree that Parent, Distribution Agent and Merger Sub shall be entitled to rely on the aggregate Liquidation Amount payable to Consideration Spreadsheet in making payments under Article II and Parent, Distribution Agent and Merger Sub shall not be responsible for the calculations or the determinations regarding such holder at calculations in such Consideration Spreadsheet. The parties acknowledge and agree that the Closing Merger Consideration, as adjusted from time to time pursuant to Section 3.04 this Agreement and giving effect to amounts released to the Priority Preferred Stockholders from the Escrow Funds are intended to be allocated among the Priority Preferred Stockholders consistent with the Company Charter Documents and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration SpreadsheetDGCL, and the Stockholder Representative is hereby authorized to update and deliver to Parent, the Distribution Agent, the Escrow Agent and any other applicable Persons the Consideration Spreadsheet from time to be delivered by CSC five (5) Business Days prior time to effectuate the Closing Date foregoing, as necessary in the Stockholder Representative’s good faith judgment to provide for an allocation consistent with the foregoing; provided, that, Parent, the Distribution Agent and the Surviving Corporation shall be consistent entitled to rely on the updated Consideration Spreadsheet in form with making payments under Article II and Parent, the Distribution Agent and the Surviving Corporation shall not be responsible for the calculations or the determinations regarding such estimate (calculations in all material respects)any updated Consideration Spreadsheet.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Merit Medical Systems Inc)
Consideration Spreadsheet. At least five (5) Business Days prior to the Closing Date, CSC The Aggregate Merger Consideration shall deliver to Parent a certificate be allocated as set forth on Schedule 1.7 (the “Consideration Spreadsheet”). The Consideration Spreadsheet identifies: (i) signed by the CSC Representative (on behalf name, address, and email address of the CSC Company Stockholders, Vested Company Option Holders, Non-Participating Instrument Holders and Participating Instrument Holders; (ii) dollar amounts being paid to each of the Non-Participating Instrument Holders; (iii) applicable investment amount of the Convertible Instrument held by each Participating Instrument Holder and the Chief Executive Officer formula by which each such person will participate; (iv) the numbers and the Chief Financial Officer exercise prices of CSC certifying as to the accuracy and completeness, in Vested Company Options held by each case holder of Vested Company Options as of the ClosingClosing Date; (v) pro rata percentages and dollar amounts of the Aggregate Closing Merger Consideration, ofEscrow Deposit, Representative Expense Fund and any other potential distributions of funds to the Company Stockholders, Participating Instrument Holders and the Vested Company Option Holders (collectively, the “Company Interest Holders”); (vi) number of shares of Company Common Stock held by each Company Stockholder (with stock certificate numbers); (vii) the amount of Closing Cash being distributed to each Company Stockholder and (viii) any required withholding (if any) with respect to each Company Interest Holder, except for Vested Company Option Holders whose withholdings will be calculated through payroll. As used in this Agreement, the terms “pro rata”, “pro rata allocation” and “pro rata percentage” (including the pro rata percentages referenced in subsection (v) above) will be calculated as follows:
(a) with respect to each Company Stockholder, the percentage will be obtained by dividing (1) the aggregate CSC Expenses number of shares of Company Common Stock held by such Company Stockholder immediately prior to the Effective Time, by (2) the aggregate number of shares of Company Common Stock outstanding as of immediately prior to the Closing and Effective Time, plus the wire instructions aggregate number of shares of Common Stock that would have been issued to the Participating Interest Holders if the Convertible Instruments had been converted into shares of Company Common Stock immediately prior to the Effective Time in accordance with the Convertible Instrument, plus the aggregate number of shares of Company Common Stock that would have been issued to the Vested Company Option Holders if the Vested Company Options had been converted into shares of Company Common Stock immediately prior to the Effective Time less the applicable per share exercise price, for each Person to whom any portion such share under the Company Option, on a net exercise basis (the total number of the CSC Expenses shares set forth in this Section 1.7(a)(2) shall be due and payable in connection with the Closing“Fully Diluted Shares”);
(b) with respect to each Participating Interest Holder, the aggregate Closing Indebtednesspercentage will be obtained by dividing: (1) the number of shares of Company Common Stock that would have been issued to such Participating Interest Holder had his, Closing Indebtedness Share Amount and her or its Convertible Instruments been converted into shares of Company Common Stock immediately prior to the wire instructions for each Person to whom any portion Effective Time in accordance with the terms of the Closing Indebtedness shall be due and payable in connection with the Closing;
Convertible Instrument, by (c) (i) a calculation of the Liquidation Preference Amount payable as of the Closing, (ii) a calculation of the Liquidation Preference Amount Remainder payable in respect of each Milestone Payment (assuming payment in full of such Milestone Payment) and (iii) a breakdown of the Liquidation Amounts payable in respect of each share of CSC Preferred Stock as of each such payment;
(d) a calculation of the aggregate Closing Common Stock Consideration payable as of the Closing and shares of Parent Common Stock payable in respect of each Milestone Payment, and a breakdown of the the Closing Common Stock Consideration payable to each holder of CSC Common Stock;
(e) a breakdown of the distribution of the CSC Expenses Escrow Amount to each CSC Securityholder, assuming the distribution thereof pursuant to Section 8.05(b)(i);
(f2) the number of Fully Diluted Shares;; and
(gc) with respect to each Vested Company Option Holder, the percentage will be obtained by dividing: (i) the identity and mailing address of record of each holder of CSC Options, (ii1) the number of shares of CSC Company Common Stock subject to CSC Options held by such holder, (iii) the Net Option Shares with respect that would have been issued to such CSC Vested Company Option Holder if his, hers or its Vested Company Options had been converted into shares of Company Common Stock immediately prior to the Effective Time, less the applicable per share exercise price, for each such share under the Company Option, on a net exercise basis by (iv) whether such option holder is an Accredited Investor, the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger in respect of such holder's Net Option Shares, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder in respect of the Net Option Shares pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, (vi) the Pro Rata Portion of such holder, and (vii) whether such CSC Option is qualified as an “incentive stock option” under Section 422 of the Code;
(i) the identity and mailing address of each record holder of a share of CSC Preferred Stock, (ii) the number and type of share held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the aggregate Liquidation Amount payable to such holder at the Closing pursuant to Section 3.04 and the CSC Charter, (v) for each Milestone Payment, the aggregate Liquidation Amount payable to such holder as of the payment of such Milestone Payment pursuant to Section 3.06 and the CSC Charter, and (vi) the Pro Rata Portion of such holder; and
(i) the identity and mailing address of each record holder of a share of CSC Common Stock, (ii2) the number of shares held by each such Person, (iii) whether such record holder is an Accredited Investor, (iv) the portion of the Closing Common Stock Consideration payable to such holder pursuant to Section 3.04 and the CSC Charter as a result of the First Merger, (v) for each Milestone Payment, the shares of Parent Common Stock payable to such holder pursuant to Section 3.06 and the CSC Charter on account of the achievement of such Milestone, and (vi) the Pro Rata Portion of such holder. CSC shall give Parent timely access to all supporting workpapers used in the preparation of the Consideration Spreadsheet, which Consideration Spreadsheet, when in form and substance satisfactory to and approved by Parent, in its reasonable discretion, shall be used as the definitive calculation of the Merger Consideration payable to the CSC Stockholders in connection with the Mergers and the disbursement thereof. Prior to the date hereof, CSC shall have delivered a best estimate of the Consideration Spreadsheet, and the Consideration Spreadsheet to be delivered by CSC five (5) Business Days prior to the Closing Date shall be consistent in form with such estimate (in all material respects)Fully Diluted Shares.
Appears in 1 contract