Whereas, pursuant to the terms and conditions set forth in the letter issued to Holdback Participant by the company regarding the treatment of share options, dated June ___, 2024 (the "Optionholder Instrument") the Acceleration Amount (as defined in the Optionholder Instrument) shall be paid to Holdback Participant, contingent upon and subject to the terms set forth in the Optionholder Instrument; the Acceleration Amount and Bonus Amount, whichever is paid to Holdback participant, shall constitute an "Employee Amount" as defined in the SPA…".
In section 1(a)(i), entitled "Bonus Amount", it is stated (p. 89 of the statement of claim):
"Release Date" means the first anniversary of the Closing Date.
"Termination Event" means the cessation of Holdback Participant's continuous service with the Buyer or any affiliate thereof at any time prior to the Release Date for any reason. For the avoidance of doubt, notwithstanding anything to the contrary, any termination of Holdback Participant's employment as a result of a change in the entity employing the Holdback Participant or change of nature of engagement (e.g., engagement as contractor, etc.) shall constitute continued employment under this agreement and no Termination event shall be deemed to occur if the new employing entity is a wholly owned subsidiary of the Buyer.
Section 1(b) entitled "Vesting Provisions" states, inter alia:
(i) As of and following the Closing Date, the Bonus Amount shall be held by the Paying Agent unless and until it is released in accordance with this Section (b). Subject to the terms and conditions of this Section (b)(i) and Section (d), the Paying Agent shall be entitled to retain the Bonus Amount if a Termination Event occurs prior to the occurrence of a Release Date for further disbursement as set forth in Section 3 below. Subject to Section 2(b) and Section 3 below and subject to the Holdback Participant's continued employment with the Buyer, the Bonus Amount shall be fully paid to Holdback Participant on the Release Date, provided that no Termination Event has occurred prior thereto.