Common use of Title and Payment Terms Clause in Contracts

Title and Payment Terms. (a) The aggregate number of CVRs that may be Outstanding under this CVR Agreement is limited to a number equal to [●]. CVRs may be issued in fractional increments of 0.01. From and after the Effective Time, the Company shall not be permitted to issue any CVRs, except as provided and in accordance with the terms and conditions of the Merger Agreement or as otherwise expressly permitted by this CVR Agreement. 2 Note to Draft: Rights Agent to confirm process for authentication. (b) The CVRs shall be known and designated as the “Series A Contingent Value Rights” of the Company and shall rank equally with all unsecured debt obligations of the Company and, for the avoidance of doubt, rank senior to the Shares and any other equity securities (including any preference shares) of the Company, in each case as to the distribution of assets on any winding up or liquidation of the Company by operation of Law or contract. (c) On the fifth (5th) Business Day following the Maturity Date (the “Maturity Payment Date”), the Company shall (i) deposit with the Rights Agent an amount in cash equal to the Maturity Payment multiplied by the number of Outstanding CVRs and (ii) cause the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held by such Holder, an amount equal to the Maturity Payment. All determinations with respect to the calculation of the Maturity Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Maturity Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) cause the Rights Agent to mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register. (d) The Company (i) may, at its option, and (ii) shall, in connection with a Fundamental Event, redeem all, but not less than all, of the then Outstanding CVRs by causing the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held by such Holder, an amount, as determined by the Company, equal to the Redemption Payment, payable to such Holder on the Redemption Date (which, in the case of a redemption in connection with a Fundamental Event, shall in no event be later than the date of consummation of such Fundamental Event). The Company shall cause the Rights Agent to give notice of any such redemption (the “Redemption Notice”), by first-class mail, postage prepaid, to all Holders of CVRs as their names and addresses appear in the CVR Register, which Redemption Notice shall specify the Redemption Date. Concurrently with the delivery of any such Redemption Notice, other than in the case of a redemption in connection with a Fundamental Event, the Company shall also make a public announcement with respect to any such redemption and shall, if required by Law, file a Current Report on Form 8-K with respect to such redemption. All determinations with respect to the calculation of the Redemption Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Redemption Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) cause the Rights Agent to mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register. (e) The Holders, by acceptance of CVRs, agree that no joint venture, partnership or other fiduciary relationship is created hereby or by the CVRs. (f) Other than in the case of interest on amounts due and payable after the occurrence of a Breach, no interest or dividends shall accrue on any amounts payable in respect of the CVRs. (g) The Parties hereto agree to treat the CVRs issued pursuant to this CVR Agreement in connection with the Merger Agreement for all income tax purposes as (i) consideration for the shares of Target that is received in a closed transaction as of the time of the closing of the Merger based on the fair market value of the CVRs as of that date, (ii) as a financial instrument that does not constitute indebtedness, and (iii) no Party hereto will take any position to the contrary on any tax return or for other tax purposes except as required by applicable Law. (h) No Holder shall, solely by virtue of holding CVRs, be entitled to any rights of a holder of any Voting Securities or other equity security or other ownership interest of the Company, in any constituent company to the Merger or in any of such companies’ Affiliates or other subsidiaries, either at Law or in equity. (i) Except as provided in this CVR Agreement, none of the Company or any of its Affiliates shall have any right to set off any amounts owed or claimed to be owed by any Holder to any of them against such Holder’s CVRs or any CVR Payment Amount or other amount payable to such Holder in respect of such CVRs. (j) In the event that (i) (A) all of the CVRs shall have become due and payable pursuant to the terms hereof, (B) all disputes with respect to amounts payable to the Holders brought pursuant to the terms and conditions of this CVR Agreement have been resolved, and (C) the Company has paid or caused to be paid or deposited with the Rights Agent all amounts payable to the Holders under this CVR Agreement or (ii) the volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in its sole discretion) is greater than $18.50 per Share over any fourteen (14) consecutive Trading Day period after the Effective Time and prior to the CVR Payment Date (such event described in this clause (ii), the “Automatic Extinguishment”), then this CVR Agreement shall cease to be of further effect and shall be deemed satisfied and discharged. Notwithstanding the satisfaction and discharge of this CVR Agreement, the obligations of the Company under Section 4.7(c) shall survive. (k) Notwithstanding anything else to the contrary herein, the Company and the Paying Agent shall be entitled to deduct and withhold from any amount payable pursuant to this CVR Agreement such amounts as they reasonably determine may be required to be deducted and withheld under applicable tax law. Amounts withheld pursuant to this Section 3.1(k) and timely paid to the appropriate tax authority shall be treated for all purposes of this CVR Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Title and Payment Terms. (ai) The aggregate number of CVRs that may be Outstanding under this CVR Agreement is limited to a number equal to [●]. CVRs may be issued in fractional increments of 0.01. From and after the Effective Time, the Company shall not be permitted to issue any CVRs, except as provided and in accordance with the terms and conditions of the Merger Agreement or as otherwise expressly permitted by this CVR Agreement. 2 Note to Draft: Rights Agent to confirm process for authentication.. 1006108252v8 (bii) The CVRs shall be known and designated as the “Series A Contingent Value Rights” of the Company and shall rank equally with all unsecured debt obligations of the Company and, for the avoidance of doubt, rank senior to the Shares and any other equity securities (including any preference shares) of the Company, in each case as to the distribution of assets on any winding up or liquidation of the Company by operation of Law or contract. (ciii) On the fifth (5th) Business Day following the Maturity Date (the “Maturity Payment Date”), the Company shall (i) deposit with the Rights Agent an amount in cash equal to the Maturity Payment multiplied by the number of Outstanding CVRs and (ii) cause the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held by such Holder, an amount equal to the Maturity Payment. All determinations with respect to the calculation of the Maturity Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Maturity Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) cause the Rights Agent to mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register. (div) The Company (i) may, at its option, and (ii) shall, in connection with a Fundamental Event, redeem all, but not less than all, of the then Outstanding CVRs by causing the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held by such Holder, an amount, as determined by the Company, equal to the Redemption Payment, payable to such Holder on the Redemption Date (which, in the case of a redemption in connection with a Fundamental Event, shall in no event be later than the date of consummation of such Fundamental Event). The Company shall cause the Rights Agent to give notice of any such redemption (the “Redemption Notice”), by first-class mail, postage prepaid, to all Holders of CVRs as their names and addresses appear in the CVR Register, which Redemption Notice shall specify the Redemption Date. Concurrently with the delivery of any such Redemption Notice, other than in the case of a redemption in connection with a Fundamental Event, the Company shall also make a public announcement with respect to any such redemption and shall, if required by Law, file a Current Report on Form 8-K with respect to such redemption. All determinations with respect to the calculation of the Redemption Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Redemption Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) cause the Rights Agent to mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register.. 1006108252v8 (ev) The Holders, by acceptance of CVRs, agree that no joint venture, partnership or other fiduciary relationship is created hereby or by the CVRs. (fvi) Other than in the case of interest on amounts due and payable after the occurrence of a Breach, no interest or dividends shall accrue on any amounts payable in respect of the CVRs. (gvii) The Parties hereto agree to treat the CVRs issued pursuant to this CVR Agreement in connection with the Merger Agreement for all income tax purposes as (i) consideration for the shares of Target that is received in a closed transaction as of the time of the closing of the Merger based on the fair market value of the CVRs as of that date, (ii) as a financial instrument that does not constitute indebtedness, and (iii) no Party hereto will take any position to the contrary on any tax return or for other tax purposes except as required by applicable Law. (hviii) No Holder shall, solely by virtue of holding CVRs, be entitled to any rights of a holder of any Voting Securities or other equity security or other ownership interest of the Company, in any constituent company to the Merger or in any of such companies’ Affiliates or other subsidiaries, either at Law or in equity. (iix) Except as provided in this CVR Agreement, none of the Company or any of its Affiliates shall have any right to set off any amounts owed or claimed to be owed by any Holder to any of them against such Holder’s CVRs or any CVR Payment Amount or other amount payable to such Holder in respect of such CVRs. (jx) In the event that (i) (A) all of the CVRs shall have become due and payable pursuant to the terms hereof, (B) all disputes with respect to amounts payable to the Holders brought pursuant to the terms and conditions of this CVR Agreement have been resolved, and (C) the Company has paid or caused to be paid or deposited with the Rights Agent all amounts payable to the Holders under this CVR Agreement or (ii) the volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in its sole discretion) is greater than $18.50 per Share over any fourteen (14) consecutive Trading Day period after the Effective Time and prior to the CVR Payment Date (such event described in this clause (ii), the “Automatic Extinguishment”), then this CVR Agreement shall cease to be of further effect and shall be deemed satisfied and discharged. Notwithstanding the satisfaction and discharge of this CVR Agreement, the obligations of the Company under Section 4.7(c) shall survive. (kxi) Notwithstanding anything else to the contrary herein, the Company and the Paying Agent shall be entitled to deduct and withhold from any amount payable pursuant to this CVR Agreement such amounts as they reasonably determine may be required to be deducted and withheld under applicable tax law. Amounts withheld pursuant to this Section 3.1(k) and timely paid to the appropriate tax authority shall be treated for all purposes of this CVR Agreement as having been paid to the Person in respect of which such deduction and withholding was made.. 1006108252v8