Earnout. Section 2.16(b)(i) of the Merger Agreement is hereby amended and restated in its entirety as follows: (i) If, (1) during any three month period ending on the last day of a calendar month prior to or ending January 15, 2016, the Company manufactures at least 1 megawatt of Qualified Cells from a Company or Parent (or any of their subsidiaries') production facility located in the United States of America; and (2) during any three month period ending on the last day of a calendar month prior to or... ending March 31, 2016, the Company manufactures at least 1 megawatt of Qualified Panels from a Company or Parent (or any of their subsidiaries') production facility located in the United States of America (collectively, the First Earnout), then Company Stockholders, the holders of Company Warrants, the holders of Vested Company Options and, as applicable, the holders of Unvested Company Options, in each case as of immediately prior to the Effective Time will be entitled to receive an aggregate number of shares of Parent Common Stock equal to the quotient obtained by dividing (A) 33.33% of the Earnout Consideration Amount; by (B) the applicable Earnout Closing Price (such number of shares of Parent Common Stock, the First Earnout Amount), with (x) each Company Stockholder being entitled to receive an amount of shares of Parent Common Stock from the First Earnout Amount (rounded down to the nearest whole share of Parent Common Stock) equal to the product obtained by multiplying (1) the applicable Per Share Earnout Consideration; by (2) the number of shares of Company Common Stock held by such Company Stockholder immediately prior to the Effective Time; (y) each holder of Company Warrants being entitled to receive an amount of shares of Parent Common Stock from the First Earnout Amount (rounded down to the nearest whole share of Parent Common Stock) equal to the product obtained by multiplying (A) the Per Share Earnout Consideration; by (B) the number of shares of Company Common Stock (after giving effect to the conversion of Company Preferred Stock into Company Common Stock, if applicable) issuable upon the exercise of such Company Warrant as of immediately prior to the Effective Time; and (z) each holder of Vested Company Options and, as applicable, each holder of Unvested Company Options being entitled to receive a number of whole shares of Parent Common Stock from the First Earnout Amount (rounded down to the nearest whole share of Parent Common Stock) equal to the product of (A) the total number of shares of Company Common Stock subject to such Company Option that were issuable upon exercise of such Company Option immediately prior to the Effective Time; multiplied by (B) the Per Share Earnout Consideration.View More
