Spreadsheet. (a) At least three (3) Business Days prior to the Closing, the Company shall deliver to Purchaser prior to the Closing a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”), which shall include, with respect to each Selling Securityholder and Optionholder: (i) the name, physical address, and email address of such holder; (ii) whether such holder is a current or former employee of the Company; (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; (iv) with respect to any shares of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; (v) the exercise price of each Company Option held by such holder, (vi) any Taxes that are required to be withheld under applicable Law from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock) or Section 2.1(b) (Company Options); (vii) the aggregate Estimated Upfront Payment or Upfront Option Cash Out Amount that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock) and Section 2.1(b) (Company Options) (on a certificate-by-certificate basis and in the aggregate), net of the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); (viii) the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount), (ix) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expenses, (xii) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information. (b) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaser: (i) the aggregate Milestone Payment that such holder is entitled to receive pursuant to Section 3.1 (Milestone Consideration) (on a certificate-by-certificate basis and in the aggregate) on such Milestone Payment date and (ii), if applicable, the following updated information for each holder: (A) the name, physical address, and email address of such holder; (B) any Taxes that are required to be withheld under applicable Law from the Milestone Payment that such holder is entitled to receive on such Milestone Payment date; and (C) such holder’s wire transfer information.
Appears in 1 contract
Spreadsheet. (a) At least three two (32) Business Days prior to the Closing, the Company shall deliver to Purchaser prior to the Closing Parent a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”)) setting forth the following information, which shall includein form and substance reasonably approved by Parent, accompanied by documentation in support of the calculation of the information set forth therein as reasonably requested by Parent:
(a) the Closing Financial Information, as calculated by the Company using the information set forth in based on the Estimated Closing Statement and in accordance with the definitions provided in this Agreement;
(b) with respect to each Selling Securityholder and OptionholderStockholder: (i) the name, physical address, name and email address of such holder; , (ii) whether such holder is a current or former employee of the Company; an accredited investor, (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; numbers, (iv) with respect to any shares of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; (v) the exercise price of each Company Option held by such holder, (vi) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) 1.6(b)(i), (Company Capital Stock) or Section 2.1(b) (Company Options); (viiv) the aggregate Estimated Upfront Payment stock or Upfront Option Cash Out Amount cash consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock1.6(b)(i) and Section 2.1(b) (Company Options) (on a certificate-by-certificate basis and in the aggregate1.6(b)(ii), net of (vi) the amount of cash to be deposited, on behalf Pro Rata Portion of such holder, into (vii) the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); Pro Rata Portion of such holder, (viii) whether shares of Company Capital Stock held by such Stockholder is a “covered security” (as defined in Section 6045) of the Code or not and, if such share of Company Capital Stock is a “covered security”, the acquisition date and Tax basis of such security, (ix) the amount of cash to be deposited, on behalf of and stock deemed contributed by such holder, holder into the Escrow Funds pursuant to Section 2.1(d) (Indemnity Escrow Fund) , Special Indemnification Escrow Fund, Purchase Price Adjustment Escrow Fund and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount)PPP Loan Escrow Fund, (ix) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expenses, (xii) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information.respectively;
(bc) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaserholder of a Company Option: (i) the aggregate Milestone Payment name and address of the holder, (ii) whether the holder is an accredited investor, an Employee or a former employee, (iii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option immediately prior to the Closing, (iv) whether any Taxes are to be withheld in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 3.1 (Milestone Consideration) (on a certificate-by-certificate basis and in the aggregate) on such Milestone Payment date and (ii1.6(c), if applicable(v) whether such holders’ Company Options are Participating Options, the following updated information for each holder: Assumed Options or Cashed-Out Options; (Avi) the name, physical address, and email address of such holder; (B) any Taxes that are required to be withheld under applicable Law from the Milestone Payment stock or cash consideration that such holder is entitled to receive on pursuant to Section 1.6(b)(ii) and Section 1.6(c) for each category of Company Options such Milestone Payment date; holder has (and, as for each Assumed Option, the number of shares of Parent Common Stock subject to the Exchange Option), (vii) the Pro Rata Portion of such holder, (viii) the Escrow Pro Rata Portion of such holder, (ix) if such holder has Participating Options or Cashed-Out Options, the amount of cash and stock deemed deducted to pay the exercise price of such Participating Options or Cashed-Out Options, as applicable, and (Cx) if such holder has Participating Options, the amount of cash and stock deemed contributed by such holder into the Indemnity Escrow Fund, Special Indemnification Escrow Fund, Purchase Price Adjustment Escrow Fund and the PPP Loan Escrow Fund, respectively.
(d) with respect to each holder of a Company Warrant which is not a Participating Option: (i) the name and address of such holder’s wire transfer information, (ii) whether such holder is an accredited investor, (iii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing, (iv) whether any Taxes are to be withheld in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 1.6(c), (v) the Pro Rata Portion of such holder, if applicable; (vi) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(b)(ii) and Section 1.6(c)(iv).
Appears in 1 contract
Sources: Merger Agreement (Crexendo, Inc.)
Spreadsheet. Not less than five (a) At least three (35) Business Days prior to the Closing, the Company shall deliver to Purchaser prior to the Closing Parent a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”) setting forth the following information, in form and substance reasonably satisfactory to Parent and accompanied by documentation reasonably satisfactory to Parent in support of the calculation of the information set forth therein:
(a) calculations of the Total Consideration and all components thereof, as well as the Closing Cash, Third Party Expenses, Closing Indebtedness, Net Working Capital, and the Per Share Merger Consideration (collectively, the “Closing Financial Information”), which shall include, ;
(b) with respect to each Selling Securityholder and OptionholderStockholder: (i) the name, physical address, name and email address of such holder; , and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the Company; Company or any of its Subsidiaries, (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; (iv) with respect to any shares of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; (v) the exercise price of each Company Option held by such holder, (viiv) the date of acquisition of such shares, (v) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.9 from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) 1.6(b)(i), (Company Capital Stock) or Section 2.1(b) (Company Options); (viivi) the aggregate Estimated Upfront Payment or Upfront Option Cash Out Amount gross consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock) and Section 2.1(b) (Company Options1.6(b)(i) (on a certificateissuance-by-certificate issuance basis and in the aggregate), (vii) such Stockholder’s Loan Repayment Amount, if any, (viii) the Pro Rata Portion of such holder and the amounts deemed contributed by such holder into the Escrow Funds, (ix) the net amounts to be paid to such holder in accordance with Section 1.6(b)(i) after deduction of the amount of cash amounts referred to be depositedin clauses (vii) and (viii);
(c) with respect to each Company Option: (i) the name, on behalf and if available the address and e-mail address of such holder, into (ii) whether such holder is an employee, consultant, director or officer of the Escrow Funds Company or any of its Subsidiaries, (iii) the grant date and expiration date thereof, (iv) whether such Company Option was granted pursuant to Section 2.1(dthe Plan, (v) the vesting schedule (Escrow Fundincluding all acceleration provisions) applicable to such Company Option and the Representative Fund Amount pursuant extent to which such Company Option is vested as of immediately prior to the Effective Time (taking into account any Company Option (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option immediately prior to the Closing, (vii) whether such Company Option is a nonstatutory option or qualifies as an incentive stock option as defined in Section 2.1(c) (Representative Fund Amount); 422 of the Code, (viii) the amount whether such Company Option is “early exercisable” for shares of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount)Company Restricted Stock, (ix) such holder’s Percentage Interest; Loan Repayment Amount, if any, (x) Closing Indebtednessthe Pro Rata Portion of such holder and the amounts deemed contributed by such holder into the Escrow Funds, (xi) Expenses, the net amounts to be paid to such holder in accordance with Section 1.6(c) after deduction of the amounts referred to in clauses (xiiix) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information.x);
(bd) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the PurchaserCompany Warrant: (i) the aggregate Milestone Payment that such name and address of the holder is entitled to receive pursuant to Section 3.1 (Milestone Consideration) (on a certificate-by-certificate basis and in the aggregate) on such Milestone Payment date and (ii)thereof, and, if applicableavailable, the following updated information for each holder: (A) the name, physical address, and email e-mail address of such holder; , (Bii) any Taxes that are required the number, class and series of shares of Company Capital Stock underlying such Company Warrant immediately prior to the Closing, (iii) the exercise price per share, (iv) the Pro Rata Portion of such holder and the amounts deemed contributed by such holder into the Escrow Funds, (v) the net amounts to be withheld under applicable Law from the Milestone Payment that paid to such holder is entitled in accordance with Section 1.6(d) after deduction of the amounts referred to receive on such Milestone Payment date; in clause (iv), and (Cv) such holder’s wire transfer information.other information which Parent or the Paying Agent may reasonably request;
Appears in 1 contract
Spreadsheet. (a) At least three (3) Business Days prior Prior to the Closing, the Company shall deliver delivered to Purchaser prior to the Closing Parent a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”)) setting forth the following information, which shall includein form and substance reasonably satisfactory to Parent and accompanied by documentation in support of the calculation of the information set forth therein:
(a) the Closing Financial Information, as calculated by the Company using the information set forth in based on the Estimated Closing Statement and in accordance with the definitions provided in this Agreement;
(b) with respect to each Selling Securityholder and OptionholderStockholder: (i) the name, physical address, name and email address of such holder; , (ii) whether such holder is a current or former employee of the Company; an Accredited Investor, (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; numbers, (iv) with respect to any shares of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; (v) the exercise price of each Company Option held by such holder, (vi) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) 1.6(b)(i), (Company Capital Stock) or Section 2.1(b) (Company Options); (viiv) the aggregate Estimated Upfront Payment stock or Upfront Option Cash Out Amount cash consideration that such holder is entitled to receive pursuant to Section 2.1(a1.6(b)(i), (vi) the Pro Rata Portion of such holder, (vii) whether shares of Company Capital StockStock held by such Stockholder is a “covered security” (as defined in Section 6045) of the Code or not and, if such share of Company Capital Stock is a “covered security”, the acquisition date and Section 2.1(bTax basis of such security, (viii) (Company Options) (on a certificate-by-certificate basis and in the aggregate), net of the amount of cash to be deposited, on behalf of deemed contributed by such holder, holder into the Escrow Funds pursuant to Section 2.1(d) 1.8(a)(iii), (Escrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); (viiiix) the amount of cash to be deposited, on behalf of deemed contributed by such holder, holder into the Escrow Stockholder Representative Expense Funds pursuant to Section 2.1(d1.8(a)(iv), and (x) the net stock or cash amounts to be paid to such holder in accordance with Section 1.8(a)(i) after deduction of the amounts referred to in clauses (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amountv), (ixviii) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expenses, (xii) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information.ix);
(bc) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaserholder of a Company Option: (i) the aggregate Milestone Payment name and address of the holder, (ii) whether the holder is an Accredited Investor, (iii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option immediately prior to the Closing, (iv) whether any Taxes are to be withheld in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 3.1 1.6(c), (Milestone Considerationv) (on a certificate-by-certificate basis and the Option Payment Amount following the Closing in the aggregate) on such Milestone Payment date and (iiaccordance with Section 1.6(c), if applicableany, the following updated information for each holder: (Avi) the name, physical address, and email address of such holder; (B) any Taxes that are required to be withheld under applicable Law from the Milestone Payment stock or cash consideration that such holder is entitled to receive on pursuant to Section 1.6(c), (vii) the amount of cash deducted with respect to such Milestone Payment date; Company Option and deposited into the Escrow Funds pursuant to Section 1.8(a)(iii), (viii) the amount of cash deemed contributed by such holder into the Stockholder Representative Expense Fund pursuant to Section 1.8(a)(iv), (ix) the Pro Rata Portion of such holder with respect to such Company Option, and (Cx) the net amounts to be paid to such holder in accordance with Section 1.6(b)(i) with respect to such Company Option after deduction of the amounts referred to in clauses (iv), (vii) and (viii); and
(d) with respect to each holder of a Company RSU: (i) the name and address of the holder’s wire transfer information, (ii) whether the holder is an Accredited Investor, (iii) the number, class and series of shares of Company Capital Stock underlying such Company RSU immediately prior to the Closing, (iv) whether any Taxes are to be withheld in accordance with Section 1.10 from the consideration that such holder is entitled to receive pursuant to Section 1.6(d), (v) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(d), (vi) the Pro Rata Portion of such holder with respect to such Company RSU, (vii) the amount of cash deducted with respect to such Company RSU and deposited into the Escrow Funds pursuant to Section 1.8(a)(iii), (viii) the amount of cash deemed contributed by such holder into the Stockholder Representative Expense Funds pursuant to Section 1.8(a)(iv), and (ix) the net stock or cash amounts to be paid to such holder in accordance with Section 1.6(d) with respect to such Company RSU after deduction of the amounts referred to in clauses (iv), (vii) and (viii) above.
Appears in 1 contract
Spreadsheet. (a) At least three (3) Business Days prior to the Closing, the Company shall deliver to Purchaser prior to the Closing Parent a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”)) setting forth the following information, which shall includein form and substance reasonably satisfactory to Parent:
(a) calculation of the Total Consideration and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount;
(b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio;
(c) with respect to each Selling Securityholder and OptionholderStockholder: (i) the name, physical address, name and email address of such holder; , (ii) whether such holder is a current or former employee of the Company; , (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; numbers, (iv) with respect to any shares the date of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; , (v) the exercise price of each Company Option held by such holder, (vi) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.8 from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock1.6(b)(i) or Section 2.1(b) 1.6(b)(ii), (Company Options); (viivi) the aggregate Estimated Upfront Payment or Upfront Option Cash Out Amount cash consideration that such holder is entitled to receive pursuant to Section 2.1(a1.6(b)(i) (Company Capital Stock) and or Section 2.1(b) (Company Options1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), net of the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); (viiivii) the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount), (ix) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expenses, (xii) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information.
(b) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaser: (i) the aggregate Milestone Payment stock consideration that such holder is entitled to receive pursuant to Section 3.1 1.6(b)(i) (Milestone Considerationon a certificate- -42- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ix) (on a certificate-by-certificate basis and in the aggregate), and (xi) on whether such Milestone Payment Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iiiv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, the following updated information for each holder: (Aix) the name, physical address, and email address exercise price per share of such holder; Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (Bx) any Taxes that are required to be withheld under applicable Law from the Milestone Payment cash consideration that such holder is entitled to receive on in accordance with Section 1.6(c), if any;
(f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Milestone Payment date; Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (Civ) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such holder’s wire transfer informationCompany Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amount.
Appears in 1 contract
Sources: Merger Agreement
Spreadsheet. (a) At least three (3) Business Days prior to the Closing, the Company shall deliver to Purchaser prior to the Closing Parent a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”)) setting forth the following information, which shall includein form and substance reasonably satisfactory to Parent:
(a) calculation of the Total Consideration and all components thereof, including Closing Cash, the Aggregate Strike Price Amount, Closing Indebtedness, Third Party Expenses, the Tax Amount and the Balance Sheet Adjustment Amount;
(b) calculation of the Per Share Consideration, the Per Share Cash Consideration, the Per Share Stock Consideration and the Exchange Ratio;
(c) with respect to each Selling Securityholder and OptionholderStockholder: (i) the name, physical address, name and email address of such holder; , (ii) whether such holder is a current or former employee of the Company; , (iii) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; numbers, (iv) with respect to any shares the date of Company Capital Stock issued on or after January 1, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; , (v) the exercise price of each Company Option held by such holder, (vi) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.8 from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock1.6(b)(i) or Section 2.1(b) 1.6(b)(ii), (Company Options); (viivi) the aggregate Estimated Upfront Payment or Upfront Option Cash Out Amount cash consideration that such holder is entitled to receive pursuant to Section 2.1(a1.6(b)(i) (Company Capital Stock) and or Section 2.1(b) (Company Options1.6(b)(ii) (on a certificate-by-certificate basis and in the aggregate), net of the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); (viiivii) the amount of cash to be deposited, on behalf of such holder, into the Escrow Funds pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount), (ix) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expenses, (xii) such holder’s Special Percentage Interest and (xiii) such holder’s wire transfer information.
(b) [***] prior to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaser: (i) the aggregate Milestone Payment stock consideration that such holder is entitled to receive pursuant to Section 3.1 1.6(b)(i) (Milestone Considerationon a certificate- by-certificate basis and in the aggregate), (viii) the Pro Rata Portion of such holder, (ix) the amount of cash and stock to be deposited into the Escrow Fund and Representative Escrow Fund on behalf of such holder pursuant to this Agreement, (x) the net cash and stock amounts to be paid to such holder in accordance with Section 1.6(b)(i) or Section 1.6(b)(ii) after deduction of the amounts referred to in clauses (v) and (ix) (on a certificate-by-certificate basis and in the aggregate), and (xi) on whether such Milestone Payment Stockholder is an Unaccredited Investor;
(d) with respect to Company Restricted Stock: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the number, class and series of shares of Company Capital Stock held by such holder as Company Restricted Stock and the respective certificate numbers, (iv) the grant date, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Restricted Stock and (vi) the number of shares of Parent Common Stock that will be issuable to such holder following the Closing in accordance with Section 1.6(b)(iii);
(e) with respect to each Company Option and Company RSU: (i) the name and address of the holder thereof, (ii) whether such holder is an employee, consultant, director or officer of the Company or any Subsidiary, (iii) the grant date and expiration date thereof, (iiiv) whether such Company Option or Company RSU was granted pursuant to the Plan, (v) the vesting schedule (including all acceleration provisions) applicable to such Company Option or Company RSU and the extent to which such Company Option or Company RSU is vested as of immediately prior to the Effective Time (taking into account any Company Option or Company RSU (or portion thereof) that, as a result of the Merger (but taking into consideration any Vesting Acceleration Waiver entered into with respect to such Company Option or Company RSU) will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vi) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Company Option or Company RSU immediately prior to the Closing, (vii) whether such holder is a Continuing Employee, Non-Continuing Employee or Departing Employee (it being understood that such information may be updated at any time prior to the Closing), (viii) the number of shares of Parent Common Stock that will be subject to such Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable, the following updated information for each holder: (Aix) the name, physical address, and email address exercise price per share of such holder; Company Option or Company RSU following the Closing in accordance with Section 1.6(c), if applicable and (Bx) any Taxes that are required to be withheld under applicable Law from the Milestone Payment cash consideration that such holder is entitled to receive on in accordance with Section 1.6(c), if any;
(f) with respect to each Company Warrant: (i) the name and address of the holder thereof, (ii) the grant date and expiration date thereof, (iii) the vesting schedule (including all acceleration provisions) applicable to such Milestone Payment date; Company Warrant and the extent to which such Company Warrant is vested as of immediately prior to the Effective Time (taking into account any Company Warrant (or portion thereof) that, as a result of the Merger will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), and (Civ) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such holder’s wire transfer informationCompany Warrant immediately prior to the Closing;
(g) with respect to the Escrowed Shares: (i) the name and address of each Person to whom such shares are to be distributed pursuant to the BO Agreement and the portion of Escrowed Shares attributable to such Person, (ii) the material terms governing the distribution of such shares, including the distribution date(s) of such shares and (iii) the aggregate cash consideration that the Escrowed Shares are to be converted into pursuant to Section 1.6(b)(ii); and
(h) with respect to the BO Earn Out Amount: (i) the name and address of each Person entitled to receive a portion of the BO Earn Out Amount and the portion of the BO Earn Out Amount attributable to such Person, (ii) the material terms governing the BO Earn Out, including the potential distribution date of such earn out, (iii) the aggregate cash consideration and aggregate stock consideration comprising the BO Earn Out Amount.
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Spreadsheet. (a) At least Not less than three (3) Business Days prior to the Closing, the Company shall deliver to Purchaser prior to the Closing Parent a spreadsheet (as may be updated from time to time pursuant to Section 6.9(b) (Spreadsheet), the “Spreadsheet”)) setting forth the following information, which shall includein form and substance reasonably satisfactory to Parent and accompanied by documentation reasonably satisfactory to Parent in support of the calculation of the information set forth therein:
(a) calculations of the Total Consideration and all components thereof, including Total Cash Consideration, Closing Cash, Closing Indebtedness, Third Party Expenses, Net Working Capital, Aggregate Exercise Price, Closing Stock Consideration, the Per Share Parent Stock Consideration, the Per Share Cash Consideration, the Escrow Amount, Escrow Cash Percentage, the Escrow Stock Percentage, the Escrow Ratio, the Expense Fund Amount, the Retention Based Payment, and the Retention Per Share Parent Stock Consideration;
(b) with respect to each Selling Securityholder and OptionholderStockholder: (i) the name, physical address, name and email address of such holder; , and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the Company; Company or any of its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 1.6(g)), (iv) the number, class and series of all shares of Company Capital Stock or Company Options held by such holder and the respective certificate numbers of all certificates evidencing all such shares; (iv) with respect to any shares of Company Capital Stock issued on or after January 1numbers, 2011 and any other securities that, in each case, are “covered securities” (within the meaning of Treasury Regulations Section 1.6045-1(a)(15)) with respect to the Company, the acquisition date and adjusted U.S. income Tax basis of such shares; (v) the exercise price date of each Company Option held by acquisition of such holdershares, (vi) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.12 from the consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock) or Section 2.1(b) (Company Options1.6(b)(i); , (vii) the aggregate Estimated Upfront Payment stock or Upfront Option Cash Out Amount cash consideration that such holder is entitled to receive pursuant to Section 2.1(a) (Company Capital Stock) and Section 2.1(b) (Company Options1.6(b)(i) (on a certificate-by-certificate basis and in the aggregate), net (viii) such Stockholder’s Loan Repayment Amount, if any, (ix) the Pro Rata Portion of such holder, (x) the amount of Parent Common Stock and cash to be deposited, deposited into the Escrow Fund on behalf of such holder, into the Escrow Funds holder pursuant to Section 2.1(d) this Agreement, (Escrow Fund) and the Representative Fund Amount pursuant to Section 2.1(c) (Representative Fund Amount); (viiixi) the amount of cash to be deposited, deposited into the Expense Fund on behalf of such holder, into the Escrow Funds holder pursuant to Section 2.1(d) (Escrow Fund) and the Representative Fund pursuant to Section 2.1(c) (Representative Fund Amount), (ix) such holder’s Percentage Interest; (x) Closing Indebtedness, (xi) Expensesthis Agreement, (xii) the amount of Parent Common Stock deposited into the restricted account of the transfer agent on behalf of such holder’s Special Percentage Interest and holder pursuant to Section 1.9(a), (xiii) such holder’s wire transfer information.
(b) [***] prior the amount of cash to the payment due date (as set forth in this Agreement) of any Milestone Payment, the Seller Representative shall update the Spreadsheet be issued to include the following information with respect to each Selling Securityholder and Optionholder and deliver such updated Spreadsheet to the Purchaser: (i) the aggregate Milestone Payment that such holder is entitled in respect of the Retention Based Payment (after giving effect to receive Section 1.6(g)) pursuant to Section 3.1 1.9(c)(ii), if applicable, (Milestone Considerationxiv) the net stock or cash amounts to be paid to such holder in accordance with Section 1.6(b)(i) after deduction of the amounts referred to in clauses (vi), (x), and (xi) (on a certificate-by-certificate basis and in the aggregate) on such Milestone Payment date ), and (iixv) the amount of cash in lieu of fractional shares of Parent Common Stock to be paid to such holder in accordance with Section 1.6(f) (on a certificate-by-certificate basis and in the aggregate);
(c) with respect to each Issued and Outstanding Company Option: (i) the name and address of the holder thereof, and, if applicableavailable, the following updated information for each holder: (A) the name, physical address, and email e-mail address of such holder; , (Bii) whether such holder is an employee, consultant, director or officer of the Company or any of its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 1.6(g)), (iv) the grant date and expiration date thereof, (v) whether such Issued and Outstanding Company Option was granted pursuant to the Plan, (vi) the vesting schedule (including all acceleration provisions) applicable to such Issued and Outstanding Company Option and the extent to which such Issued and Outstanding Company Option is vested as of immediately prior to the First Effective Time (taking into account any Issued and Outstanding Company Option (or portion thereof) that, as a result of the Mergers will accelerate in full and no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions), (vii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Issued and Outstanding Company Option immediately prior to the Closing, (viii) whether such Issued and Outstanding Company Option is a nonstatutory option or qualifies as an incentive stock option as defined in Section 422 of the Code, (ix) whether such holder is a Continuing Employee or a Non-Continuing Employee (it being understood that such information may be updated at any time prior to the Closing), (x) whether any Taxes that are required to be withheld under applicable Law in accordance with Section 1.12 from the Milestone Payment consideration that such holder is entitled to receive pursuant to Section 1.6(c)(i), (xi) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(c)(i) (on a grant-by-grant basis and in the aggregate), (xii) the Pro Rata Portion of such Milestone holder, (xiii) the amount of Parent Common Stock and cash to be deposited into the Escrow Fund on behalf of such holder pursuant to this Agreement, (xiv) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (xv) the amount of Parent Common Stock deposited into the restricted account of the transfer agent on behalf of such holder pursuant to Section 1.9(a), (xvi) the amount of cash to be issued to such holder in respect of the Retention Based Payment date; (after giving effect to Section 1.6(g)) pursuant to Section 1.9(c)(ii), if applicable, (xvii) the net stock or cash amounts to be paid to such holder in accordance with Section 1.6(c)(i) after deduction of the amounts referred to in clauses (x), (xiii) and (Cxiv) (on a grant-by-grant basis and in the aggregate), (xviii) the amount of cash in lieu of fractional shares of Parent Common Stock to be paid to such holder in accordance with Section 1.6(f) (on a grant-by-grant basis and in the aggregate), (xix) such holder’s wire Loan Repayment Amount, if any and (xx) an indication of whether such holder will, in respect of the consideration payable to such holder in cash, be paid by the Exchange Agent or through the Surviving LLC’s payroll system;
(d) with respect to each Participating Company Note: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) whether such holder is a current or former employee of the Company or any of its Subsidiaries, (iii) whether such holder is an Accredited Investor (based on the questionnaire submitted by such holder or at the direction of Parent in accordance with Section 1.6(g)), (iv) the number, class and series of shares of Company Capital Stock issuable upon the conversion of such Participating Company Note, (v) the date of issuance of such Participating Company Note, (vi) whether any Taxes are to be withheld in accordance with Section 1.12 from the consideration that such holder is entitled to receive pursuant to Section 1.6(d)(i), (vii) the stock or cash consideration that such holder is entitled to receive pursuant to Section 1.6(d)(i) (on a per Participating Company Note basis and in the aggregate), (viii) such holder’s Loan Repayment Amount, if any, (ix) the Pro Rata Portion of such holder, (x) the amount of Parent Common Stock and cash to be deposited into the Escrow Fund on behalf of such holder pursuant to this Agreement, (xi) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (xii) the amount of Parent Common Stock deposited into the restricted account of the transfer information.agent on behalf of such holder pursuant to Section 1.9(a), (xiii) the amount of cash to be issued to such holder in respect of the Retention Based Payment (after giving effect to Section 1.6(g)) pursuant to Section 1.9(c)(ii), if applicable, (xiii) the net stock or cash amounts to be paid to such holder in accordance with Section 1.6(d)(i) after deduction of the amounts referred to in clauses (vi), (x), and (xi) (on a per Participating Company Note basis and in the aggregate), and (xiv) the amount of cash in lieu of fractional shares of Parent Common Stock to be paid to such holder in accordance with Section 1.6(f) (on a per Participating Company Note basis and in the aggregate); 66 (e) with respect to each Promised Company Option: (i) the name and address of the holder thereof, and, if available, the e-mail address of such holder, (ii) whether such holder is an employee, consultant, director or officer of the Company or any of its Subsidiaries, (iii) the exercise price per share and the number, class and series of shares of Company Capital Stock underlying such Promised Company Option immediately prior to the Closing, (iv) whether such holder is a Continuing Employee or a Non-Continuing Employee (it being understood that such information may be updated at any time prior to the Closing), (v) whether any Taxes are to be withheld in accordance with Section 1.12 from the consideration that such holder is entitled to receive pursuant to Section 1.6(e)(i), (vi) the cash consideration that such holder is entitled to receive pursuant to Section 1.6(e)(i) (on a grant-by-grant basis and in the aggregate), (vii) the Pro Rata Portion of such holder, (viii) the amount of cash to be deposited into the Escrow Fund on behalf of such holder pursuant to this Agreement, (ix) the amount of cash to be deposited into the Expense Fund on behalf of such holder pursuant to this Agreement, (x) the amount of cash to be issued to such holder in respect of the Retention Based Payment pursuant to Section 1.9(c)(ii), if applicable, (xi) the cash amount to be paid to such holder in accordance with Section 1.6(e)(i) after deduction of the amounts referred to in clauses (v), (viii) and (ix) (on a grant-by-grant basis and in the aggregate), (xii) such holder’s Loan Repayment Amount, if any and (xiii) an indication of whether such holder will, in respect of the consideration payable to such holder in cash, be paid by the Exchange Agent or through the Surviving LLC’s payroll system;
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