M&A Boot Camp booklet 2023 - Flipbook - Page 92
1.4 Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent prior to the Effective Time:
(a) the certificate of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time in a form
acceptable to Parent;
(b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger
Sub as in effect immediately prior to the Effective Time; and
(c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be those Persons designated by
Parent in its sole discretion.
1.5 Conversion of Shares.
(a) Conversion. Subject to Sections 1.8 and 1.9, at the Effective Time, by virtue of the Merger and without any further action on the
part of Parent, Merger Sub, the Company or any stockholder of the Company, each share of Company Capital Stock outstanding immediately
prior to the Effective Time shall be converted into the right to receive from Parent, following the surrender of the certificate representing such
share of Company Capital Stock in accordance with Section 1.9, the following consideration:
(i) each share of Company Capital Stock owned by Parent, Merger Sub, the Company or any direct or indirect wholly-owned
subsidiary of Parent, Merger Sub or the Company immediately prior to the Effective Time, if any, shall, by virtue of the Merger, be
canceled without payment of any consideration with respect thereto;
(ii) each share of Series A Preferred Stock outstanding immediately prior to the Effective Time shall be converted into the right to
receive: (A) an amount in cash equal to: (1) the Series A Per Share Amount (as defined in Section 1.5(b)); minus (2) the Escrow
Contribution Amount (as defined in Section 1.5(b)) per share of Series A Preferred Stock; minus (3) the Series A Per Share Shortfall
Amount (as defined in Section 1.5(b)); minus (4) the Stockholders’ Agent Escrow Contribution Amount (as defined in Section 1.5
(b)) per share of Series A Preferred Stock; plus (B) any cash disbursements required to be made from the Escrow Fund with respect to
such share to the former holder thereof in accordance with the terms of the Escrow Agreement, as and when such disbursements are
required to be made; plus (C) any cash disbursements required to be made from the Stockholders’ Agent Escrow Fund with respect to
such share to the former holder thereof in accordance with the terms of the Stockholders’ Agent Escrow Agreement, as and when such
disbursements are required to be made; plus (D) the right to receive payments, if any, pursuant to Section 1.7;
(iii) each share of Series B Preferred Stock outstanding immediately prior to the Effective Time shall be converted into the right to
receive: (A) an amount in cash equal to: (1) the Series B Per Share Amount (as defined in Section 1.5(b)); minus (2) the Escrow
Contribution Amount per share of Series B Preferred Stock; minus (3) the Series B Per Share Shortfall Amount (as defined in Section 1.5
(b)); minus (4) the Stockholders’ Agent Escrow Contribution Amount per share of Series B Preferred Stock; plus (B) any cash
disbursements required to be made from the Escrow Fund with respect to such share to the former holder thereof in accordance with
the terms of the Escrow Agreement, as and when such disbursements are required to be made; plus (C) any cash disbursements
required to be made from the Stockholders’ Agent Escrow Fund with respect to such share to the former holder thereof in accordance
with the terms of the Stockholders’ Agent Escrow Agreement, as and when such disbursements are required to be made; plus (D) the
right to receive payments, if any, pursuant to Section 1.7;
2.