Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization and Merger (Lsi Logic Corp), Agreement and Plan of Reorganization and Merger (Lsi Logic Corp), Agreement and Plan of Reorganization and Merger (Seeq Technology Inc)
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than Cancelled Shares, any shares Dissenting Shares, and any share of Company Common Stock to held by any direct or indirect wholly owned subsidiary of the Company) shall be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio receive: (as defined belowA) $59.60 in cash (the "Parent Common Stock"“Cash Consideration”) upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 and (or in the case B) a fraction of a lostvalidly issued, stolen or destroyed certificate, upon delivery of an affidavit (fully paid and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one nonassessable share of Parent Common Stock as reported on (rounding to the New York Stock Exchange nearest ten-thousandth of a share) equal to the quotient (the "NYSE"“Exchange Ratio”) for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 (x) $14.90 by (y) the Average Parent Trading Price; provided, furtherhowever, that if the Average Parent Trading Price is higher an amount greater than or equal to $30.0059.98, then the Exchange Ratio shall mean be 0.2484, and if the quotient determined by dividing 3.285 by Parent Trading Price is an amount equal to or less than $49.08, then the Average PriceExchange Ratio shall be 0.3036 (the “Stock Consideration” and, together with the Cash Consideration, the “Merger Consideration”). If any shares Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time are unvested that is held by any direct or are subject indirect wholly owned subsidiary of the Company shall be converted into such number of shares of common stock, par value $0.01 per share, of the Surviving Company such that the ownership percentage of any such Subsidiary in the Surviving Company immediately following the Effective Time shall equal the ownership percentage of such Subsidiary in the Company immediately prior to a repurchase option, risk the Effective Time. All of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Company Common Stock issued in exchange for converted into the right to receive the Merger Consideration pursuant to this Article II shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and uncertificated shares of Company Common Stock represented by book-entry form (“Book-Entry Shares”) and each certificate that, immediately prior to the Effective Time, represented any such shares of Company Common Stock will also be unvested (each, a “Certificate”) shall thereafter represent only the right to receive the Merger Consideration and subject the Fractional Share Cash Amount into which the shares of Company Common Stock represented by such Book-Entry Share or Certificate have been converted pursuant to the same repurchase optionthis Section 2.1, risk of forfeiture as well as any dividends or other condition, and the certificates representing such shares distributions to which holders of Parent Company Common Stock may accordingly be marked become entitled in accordance with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementSection 2.2(e).
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Dollar Tree Inc), Merger Agreement (Family Dollar Stores Inc)
Conversion of Company Common Stock. Each Subject to Section 2.02(e), each issued and outstanding share of Company Common Stock (other than shares to be canceled in accordance with Section 2.01(b)) shall be converted into the right to receive that number (subject to the proviso to this sentence and to Section 9.02, the "Per Share Merger Consideration") of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock, $0.01 par value $1.00 per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights Parent (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Parent Common Stock") equal to the quotient, rounded to the nearest thousandth, or if there shall not be a nearest thousandth, the next higher thousandth, of (i) the quotient of (x) $1,550,000,000 divided by (y) the number (the "Outstanding Number") of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b2.01(b)), will be canceled and extinguished and automatically converted divided by (subject to Sections 1.6(eii) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio Market Price (as defined below) of Parent Common Stock on the date on which the Effective Time shall occur; provided, however, that in the event that the product of the Per Share Merger Consideration multiplied by the Outstanding Number would exceed 110,000,000 (the "Maximum Number of Shares"), then the Per Share Merger Consideration shall mean the highest number (after taking into account the rounding provision of this sentence) that would not result in the product of such number multiplied by the Outstanding Number exceeding 110,000,000. The "Market Price" of Parent Common Stock") upon surrender Stock on any date means the average of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average daily closing sale price of one prices per share of Parent Common Stock as reported on the New York Stock Exchange NYSE Composite Transactions List (as reported by the Wall Street Journal or, if not reported thereby, by another authoritative source mutually selected by Parent and the Company) for the 15 consecutive full NYSE trading days (the "NYSEAveraging Period") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date third full NYSE trading day prior to such date; provided that (the "Average Price"A) is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean Board of Directors of Parent declares a dividend on the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued having a record date after the Effective Time but an ex-dividend date (based on "regular way" trading on the NYSE of shares of Parent Common Stock (the "Ex-Date")) that occurs during the Averaging Period, then for purposes of computing the Market Price, the closing price on the Ex-Date and any trading day in exchange the Averaging Period after the Ex-Date will be adjusted by adding thereto the amount of such dividend and (B) if the Board of Directors of Parent declares a dividend on the outstanding shares of Parent Common Stock having a record date before the Effective Time and an Ex-Date that occurs during the Averaging Period, then for purposes of computing the Market Price, the closing price on any trading day before the Ex-Date will be adjusted by subtracting therefrom the amount of such dividend. For purposes of the immediately preceding sentence, the amount of any non- cash dividend will be the fair market value thereof on the payment date for such dividend as determined in good faith by mutual agreement of Parent and the Company. As of the Effective Time, all such shares of Company Common Stock will also shall no longer be unvested outstanding and subject shall automatically be canceled and retired and shall cease to the same repurchase option, risk of forfeiture or other conditionexist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the certificates representing such right to receive the Per Share Merger Consideration and any cash in lieu of fractional shares of Parent Common Stock may accordingly to be marked issued or paid in consideration therefor upon surrender of such certificate in accordance with appropriate legends. The Company shall take all action that may be necessary to ensure thatSection 2.02, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementwithout interest.
Appears in 3 contracts
Sources: Merger Agreement (Gaylord Entertainment Co), Merger Agreement (Westinghouse Electric Corp), Merger Agreement (Westinghouse Electric Corp)
Conversion of Company Common Stock. Each share At the Effective Time, by virtue of Common Stock, $0.01 par value per share, the Merger and without any action on the part of the holder of any shares of Company includingCommon Stock or any shares of capital stock of Merger Sub, with respect subject to this Section 2.3 and Section 2.4(f), each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) 2.2 (the "Canceled Shares") and Dissenting Shares) shall be converted into a number (the "Conversion Number") of duly authorized, validly issued and nonassessable shares of Parent Common StockStock (the "Merger Consideration") upon surrender determined by dividing $23.09 by the average of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (daily average per share high and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price low sales prices of one share of Parent Common Stock as reported on the Nasdaq National Market (as reported in the New York Stock Exchange (the "NYSE"City edition of The Wall Street Journal or, if not reported thereby, another authoritative source) for each of the ten (10) consecutive 20 trading days ending on the third trading day immediately preceding prior to the Company Meeting (as defined in Section 5.3, so long as the Closing Date occurs within five business days of the Company Meeting or, if the Closing Date is more than five business days after the Company Meeting, the Closing Date) rounded to the nearest cent (the "Average Parent Price"), provided that (i) if the Average Parent Price is less than $24.0021.00, Exchange Ratio the Conversion Number shall mean the quotient determined by dividing 2.628 by be 1.0995; and (ii) if the Average PriceParent Price is greater than $28.25, the Conversion Number shall be 0.8173; provided, furtherhowever, that that, in any event, if between the Average Price is higher than $30.00date of this Agreement and the Effective Time, Exchange Ratio the outstanding shares of Parent Common Stock shall mean have been changed into a different number of shares or a different class, by reason of any declared or completed stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the quotient determined by dividing 3.285 by Conversion Number shall be adjusted correspondingly to the Average Priceextent appropriate to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. If any At the Effective Time, all such shares of Company Common Stock (other than Dissenting Shares) shall no longer be outstanding and automatically shall be canceled and retired and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such represented outstanding shares of Company Common Stock will also be unvested and subject (other than Dissenting Shares) shall cease to have any rights with respect thereto, except the same repurchase option, risk of forfeiture or other condition, and right to receive the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementMerger Consideration.
Appears in 3 contracts
Sources: Merger Agreement (Macdonald James L), Merger Agreement (Photronics Inc), Merger Agreement (Align Rite International Inc)
Conversion of Company Common Stock. Each Subject to adjustment as provided in Section 2.01(c)(iv) and other than Dissenter Shares (as defined in Section 2.04) and fractional shares subject to Section 2.02(e), each issued and outstanding share of Company Common StockStock held by stockholders of the Company (other than shares cancelled pursuant to Section 2.01(b)) shall be converted into the right to receive:
(i) a fraction of a share (rounded to four (4) decimal places) of validly issued, fully paid and nonassessable Parent Common Stock at an exchange ratio (the “Exchange Ratio”) as determined in accordance with this Section 2.01(c) (the “Stock Consideration”); and
(ii) an amount in cash equal to $0.01 par value per share6.50 (the “Cash Consideration” and, together with the Stock Consideration and any cash in lieu of Company includingfractional shares of Parent Common Stock to be paid pursuant to Section 2.02(e), with respect the “Merger Consideration”).
(iii) The Exchange Ratio shall be calculated as follows:
(A) If the Average Parent Stock Price (as defined below in Section 2.01(c)(iii)(D)) is equal to or more than $72.86 (the “Upper Limit”), then the Exchange Ratio shall be 0.0892 shares of Parent Common Stock for each such share of Company Common Stock, .
(B) If the associated Rights (as defined in that certain Rights Agreement Average Parent Stock Price is less than the Upper Limit but more than $53.86 (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b“Lower Limit”), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to then the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall be equal to a fraction of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock for each share of Company Common Stock determined by dividing $6.50 by the Average Parent Stock Price.
(C) If the Average Parent Stock Price is equal to or less than the Lower Limit, then the Exchange Ratio shall be 0.1207 shares of Parent Common Stock for each share of Company Common Stock.
(D) For purposes of this Agreement, “Average Parent Stock Price” means an amount equal to the average of the daily closing sale prices for the Parent Common Stock on the NYSE, as reported on in The Wall Street Journal, Northeastern edition, for each of the New York Stock Exchange twenty (the "NYSE") for the ten (1020) consecutive trading days ending on with and including the second (2nd) complete trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested (as adjusted for any reclassification, recapitalization, subdivision, split-up, combination, exchange of shares or are subject to readjustment of, or a repurchase optionstock dividend on, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued as provided in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementSection 2.01(c)(iv)).
Appears in 3 contracts
Sources: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive (i) that number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent (the “Stock Portion”) equal to the Exchange Ratio quotient determined by dividing $38.00 by the Parent Average Closing Stock Price (as defined below) and rounding the result to the nearest 1/10,000 of a share (the "Parent Common Stock") “Exchange Ratio”), payable upon surrender surrender, in the manner provided in Section 2.02, of the certificate representing that formerly evidenced such share of Company Common Stock; provided, however, that if such quotient is less than 1.3167, the Exchange Ratio will be 1.3167 and if such quotient is greater than 1.6799, the Exchange Ratio will be 1.6799, (ii) $42.00 in cash, without interest (the “Cash Portion”) and (iii) if the Closing shall not have occurred on or prior to March 31, 2006, an amount in cash equal to $0.0132 per day for each day during the period commencing April 1, 2006 through the date of the Closing (the “Interest Portion”; the Interest Portion, if any, together with the Stock Portion and Cash Portion, being the “Merger Consideration”). For the purposes of this Section 2.01, the term “Parent Average Closing Stock Price” means the average of the per share closing prices of Parent Common Stock on the NYSE during the 20 consecutive trading days ending on (and including) the date that is three trading days prior to the date of the Closing. At the Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a “Certificate”) shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Merger Consideration, risk of forfeiture any dividends or other conditiondistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e), in each case to be issued or paid in consideration therefor upon surrender of such Certificate in accordance with Section 2.02(b), without interest. Notwithstanding the foregoing, if between the date of this Agreement and the certificates representing such Effective Time, (A) the outstanding shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary have been changed into a different number of shares or a different class, by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, (B) Parent declares or pays cash dividends in any fiscal quarter in excess of 200% of the amount of regularly quarterly dividends paid by the Parent immediately prior to ensure thatthe date hereof or (C) Parent engages in any spin-off or split-off, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth then in any such restricted stock purchase agreement case the Exchange Ratio shall be appropriately adjusted to reflect such action. The right of any holder of a Certificate to receive the Merger Consideration, any dividends or other agreementdistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e) shall be subject to and reduced by the amount of any withholding that is required under applicable tax Law.
Appears in 2 contracts
Sources: Merger Agreement (Boston Scientific Corp), Merger Agreement (Boston Scientific Corp)
Conversion of Company Common Stock. Each share (a) As of Common Stockthe Effective Time, $0.01 par value per share, by virtue of the Merger and without any action on the part of the holder of any shares of Company includingCommon Stock or any shares of capital stock of Merger Sub, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any Canceled Shares and provided that shares of Company the Company's Common Stock to held under the Company's Deferred Compensation Incentive Plan shall be canceled pursuant to deemed issued and outstanding for purposes of this Section 1.6(b2.03) shall be converted into, at the election of the holder thereof, one of the following (or a combination of shares of Parent Common Stock and cash determined in accordance with Sections 2.03(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(ed), (e), (f) and (fg)) into (the "Merger Consideration"): either -
(i) the right to receive 1.39 fully paid and non-assessable shares of Parent Common Stock (sometimes referred to hereinafter, as the context requires, as the "Exchange Ratio" or the "Stock Consideration"); provided, however, that,
(A) if the "Closing Price" (as defined in Section 2.03(a)(iii) below) of Parent Common Stock is less than $5.65 per share, then each outstanding share of Company Common Stock, at the election and in the sole discretion of Parent, may be converted into that number of shares of Parent Common Stock equal to the product of (I) $5.65 divided by the Closing Price of the Parent equal Common Stock multiplied by (II) the Exchange Ratio (the "Topping Up Election"); provided, further, that, in the event that the Parent does not exercise its right to make the Topping Up Election as provided in the preceding clause and notify the Company of its election to do so in writing at least two trading days before the Closing Date, then the Company, in its sole discretion, may elect to terminate this Agreement, and if this Agreement is not so terminated, holders of the shares of the Company Common Stock will receive the Stock Consideration without any further adjustments to the Exchange Ratio with the Cash Consideration adjusted in order to qualify the transaction as a tax free reorganization under Section 368(a) of the Code; and
(as defined belowB) if the Closing Price of Parent Common Stock is greater than $8.47 per share, then Parent, in its sole discretion, may elect to terminate this Agreement; or -
(ii) the right to receive in cash from Parent, without interest, an amount equal to $10.08 (the "Cash Consideration").
(iii) the term "Closing Price" shall mean the average of the closing trade prices of Parent Common StockStock for the twenty consecutive trading days ending on the third trading day before the Closing Date and reported on the American Stock Exchange (the ") upon surrender AMEX"). As of the certificate representing Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If certificate representing any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject shall cease to have any rights with respect thereto, except the same repurchase optionright to receive, risk upon surrender of forfeiture or other conditionsuch certificate in accordance with Section 2.04, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementMerger Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Hovnanian Enterprises Inc), Merger Agreement (Hovnanian Enterprises Inc)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02 and Section 2.03, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares to be cancelled or converted into shares of the Surviving Company Common Stock to in accordance with Section 2.01(b) and Dissenting Shares) shall be canceled pursuant to Section 1.6(b), will be canceled cancelled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of (i) 0.06942 (the “Exchange Ratio”) validly issued, fully paid and non-assessable shares of Common Stock common stock, par value $0.01 per share, of Parent equal to (the Exchange Ratio (as defined below“Parent Common Stock”) (the "“Stock Consideration”), (ii) $10.50 per share in cash (the “Cash Consideration”), and (iii) one contingent value right (a “CVR”) issued by Parent subject to and in accordance with the CVR Agreement (the “CVR Consideration” and, together with the Stock Consideration and the Cash Consideration, the “Merger Consideration”) payable to holder thereof, without interest or dividends thereon, less any applicable withholding of Taxes. Each CVR issued as CVR Consideration hereunder will be substantially in the form attached as Annex A to the CVR Agreement (the “CVR Certificate”). All such shares of Company Common Stock", when so converted, shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate (or evidence of shares in book-entry form) upon surrender of that immediately prior to the certificate representing Effective Time represented any such shares of Company Common Stock (each, a “Certificate”) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration and any cash in the manner provided in Section 1.7 (or in the case lieu of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the fractional shares of Parent Common Stock to be issued or paid in exchange for consideration therefor and any dividends or other distributions to which holders become entitled upon the surrender of such shares of Company Common Stock will also be unvested Certificate in accordance with Section 2.02(d), without interest and subject to any applicable withholding of Taxes. Notwithstanding the same repurchase optionforegoing, risk if between the date of forfeiture or other condition, this Agreement and the certificates representing such Effective Time the outstanding shares of Parent Common Stock may accordingly or Company Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then the Exchange Ratio will be marked appropriately adjusted to provide to Parent and the holders of Company Common Stock, Company Stock Options, Company Restricted Stock Awards, Company Deferred Stock Awards and other awards under the Company Stock Plans the same economic effect as contemplated by this Agreement prior to such event; provided that with appropriate legends. The respect to outstanding Company shall take all action that may be necessary to ensure thatStock Options and other awards made under the Company Stock Plans, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth adjustments shall be made in any such restricted stock purchase agreement or other agreementaccordance with the applicable Company Stock Plan.
Appears in 2 contracts
Sources: Merger Agreement (Community Health Systems Inc), Merger Agreement (Health Management Associates, Inc)
Conversion of Company Common Stock. Each share of Common StockExcept as otherwise provided below, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective TimeTime of Merger I (including, other than any shares but not limited to, each share of Company Preferred Stock converted into Company Common Stock to be canceled pursuant to Section 1.6(bStock), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent receive:
(i) at the Closing:
(A) a cash payment equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Initial Common Stock Cash Payment; and
(B) a payment in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share shares of Parent Common Stock (valued at the Closing Average Stock Price) equal to the Initial Common Stock Stock Payment. The payments set forth in subsections (i)(A) and (i)(B) above shall hereinafter be referred to, collectively, as reported the “Initial Common Consideration.”
(ii) on the New York Second Payment Date, a payment in cash, Parent Common Stock Exchange or any combination thereof, with the form of consideration at the sole election of Parent, except that the amount of Parent Common Stock issued shall not be less than the Second Payment Minimum Share Number (the "NYSE"“Second Payment”) for the ten equal to:
(10A) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any a payment in shares of Parent Common Stock equal to (x) the Second Payment Share Number, divided by (y) the Fully Diluted Company Common Stock outstanding immediately prior Number; and
(B) a cash payment equal to (x) (1) (I) $40.0 million, minus (II) the Effective Time are unvested or are subject Second Payment Holdback, minus (III) any Working Capital Shortfall payable pursuant to a repurchase optionSection 3.1(c) below, risk minus (IV) any Accountant Fees incurred in connection with Section 3.1(b), minus (V) the Second Payment Date Determined Offsets, if any, minus (VI) the Second Payment Date Claimed Offsets, if any (provided that the Second Payment Date Determined Offsets and the Second Payment Date Claimed Offsets shall in no event be more than the Maximum Second Payment Date Offset), minus (2) the product of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with (I) the Company, then the number of shares of Parent Common Stock issued in exchange for such shares of to Company Common Stock will also be unvested and subject to the same repurchase optionHolders, risk of forfeiture or other condition, Optionholders and the certificates representing such Warrantholder in the Second Payment and (II) the Second Payment Average Stock Price, divided by (y) the Fully Diluted Company Common Stock Number.
(iii) on the Third Payment Date, a payment in cash, Parent Common Stock or any combination thereof, with the form of consideration at the sole election of Parent, except that the number of shares of Parent Common Stock may accordingly issued shall not be marked less than the Third Payment Minimum Share Number when aggregated with appropriate legendsthe shares issued pursuant to subsections (i) and (ii) above (the “Third Payment”) equal to:
(A) a payment in shares of Parent Common Stock equal to (x) the Third Payment Share Number, divided by (y) the Fully Diluted Company Common Stock Number; and
(B) a cash payment equal to (x) (1) the Earnout Amount, minus (2) the product of (I) the number of shares of Parent Common Stock issued to Company Common Stock Holders, Optionholders and the Warrantholder in the Third Payment and (II) the Third Payment Average Stock Price, minus (3) any Accountant Fees incurred in connection with Section 3.2(c), divided by (y) the Fully Diluted Company Common Stock Number.
(iv) on the Fourth Payment Date, a payment in cash, Parent Common Stock or any combination thereof, with the form of consideration at the sole election of Parent, except that the number of shares of Parent Common Stock issued shall not be less than the Fourth Payment Minimum Share Number when aggregated with the shares issued pursuant to subsections (i), (ii) and (iii) above (the “Fourth Payment”) equal to:
(A) a payment in shares of Parent Common Stock equal to (x) the Fourth Payment Share Number, divided by (y) the Fully Diluted Company Common Stock Number; and
(B) a cash payment equal to (x) (1) (I) the Second Payment Holdback, minus (II) the Fourth Payment Date Determined Offsets, if any, minus (III) the Fourth Payment Date Claimed Offsets, if any (which difference pursuant to this subsection (1) shall in no event be more than the Maximum Fourth Payment Date Offset), minus (2) the product of (I) the number of shares of Parent Common Stock issued to Company Common Stock Holders, Optionholders and the Warrantholder in the Fourth Payment and (II) the Fourth Payment Average Stock Price, divided by (y) the Fully Diluted Company Common Stock Number. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right payments set forth in any such restricted stock purchase agreement or other agreementsubsections (ii), (iii) and (iv) above shall hereinafter be referred to, collectively, as the “Subsequent Common Consideration.”
Appears in 2 contracts
Sources: Merger Agreement (Arthrocare Corp), Merger Agreement (Arthrocare Corp)
Conversion of Company Common Stock. Each share At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or any holder of shares of Company Common Stock, $0.01 par value per share, of Company including, with respect to each such :
(a) Each share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b2.2(b), will ) shall be canceled and extinguished and shall be converted automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of (i) 4.7771 (the “Exchange Ratio”) fully paid and nonassessable shares of Common Stock common stock, par value $0.001 per share, of Parent equal to the Exchange Ratio (as defined below) (the "“Parent Common Stock"”) upon surrender plus (ii) $2.50 in cash (the “Per Share Cash Consideration”). For purposes of this Agreement, the “Merger Consideration” means the right to receive the consideration described in the immediately preceding sentence pursuant to the Merger with respect to each share of Company Common Stock. As of the certificate representing Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If certificate representing any such shares of Company Common Stock outstanding shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration and any cash in lieu of fractional shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such certificate in accordance with Section 2.3, without interest.
(b) Each share of Company Common Stock held in the treasury of the Company and each share of Company Common Stock owned by Merger Sub, Parent or any wholly-owned Subsidiary of Parent or of the Company immediately prior to the Effective Time are unvested shall be canceled without any conversion thereof and no payment or are subject distribution shall be made with respect thereto.
(c) Notwithstanding anything in this Agreement to a repurchase optionthe contrary, risk if, between the date of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with this Agreement and the CompanyEffective Time, then the outstanding shares of Parent Common Stock issued in shall have been changed into a different number of shares or a different class by reason of any reclassification, recapitalization, split-up, combination, exchange for of shares or readjustment, or a stock dividend thereon shall have been declared with a record date within such shares of Company Common Stock will also be unvested and subject to period, the same repurchase optionExchange Ratio, risk of forfeiture or other condition, the Conversion Ratio and the certificates representing such shares of Parent Common Stock may accordingly Per Share Cash Consideration shall be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementcorrespondingly adjusted.
Appears in 2 contracts
Sources: Merger Agreement (Arena Resources Inc), Merger Agreement (Sandridge Energy Inc)
Conversion of Company Common Stock. Each (a) At the Effective Time, subject to the other provisions of this Article I and Sections 2.2(f) and 9.1(g) hereof, each share of Common Stockthe common stock, $0.01 par value per share, of the Company including, with respect to each such share of (the “Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"”) issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into held directly or indirectly by Parent or the right to receive that number Company or any of shares of Common Stock of Parent equal to the Exchange Ratio their respective Subsidiaries (as defined below) (except for DPC Shares, as such term is defined in Section 1.4(d) hereof)) shall, by virtue of this Agreement and without any action on the "part of the holder thereof, cease to be outstanding and be converted into the right to receive a fraction (subject to adjustment as provided for herein, the “Exchange Ratio”) of a share of Parent Common Stock") upon surrender , calculated as of the Determination Date, whose numerator is $10.00 and whose denominator is the Average Closing Price, provided, however, that in no event shall the Exchange Ratio be greater than 0.38 or less than 0.34 (the “Merger Consideration”).
(b) All of the shares of Company Common Stock converted into the Merger Consideration pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate or direct registration statement previously representing any such shares of Company Common Stock (each a “Certificate”) shall thereafter cease to have any rights with respect to such securities, except the right to receive (i) the Merger Consideration, (ii) any dividends and other distributions in the manner provided accordance with Section 2.2(c) hereof, and (iii) any cash to be paid in Section 1.7 (or in the case lieu of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one any fractional share of Parent Common Stock as reported on in accordance with Section 2.2(f) hereof.
(c) If, between the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares date of Company Common Stock outstanding immediately prior to this Agreement and the Effective Time are unvested or are subject to a repurchase optionTime, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued shall be changed into a different number or class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or a stock dividend thereon shall be declared with a record date within such period, proportionate adjustments shall be made to the Exchange Ratio and any references in exchange for this Agreement to “Exchange Ratio” shall thereafter be deemed to refer to the Exchange Ratio after giving effect to any adjustment made pursuant to this Section 1.4(c).
(d) At the Effective Time, all shares of Company Common Stock that are owned directly or indirectly by Parent or the Company or any of their respective Subsidiaries (other than shares of Company Common Stock held by Parent or the Company or any of their respective Subsidiaries in respect of a debt previously contracted (any such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other conditionStock, and the certificates representing such shares of Parent Common Stock may accordingly which are similarly held, whether held directly or indirectly by Parent or the Company, being referred to herein as “DPC Shares”)) shall be marked with appropriate legends. The Company cancelled and shall take all action that may be necessary cease to ensure thatexist, from and after the Effective Timeno stock of Parent, Parent is entitled to exercise any such repurchase option cash or other right set forth consideration shall be delivered in exchange therefor. All shares of Parent Common Stock that are owned by the Company or any such restricted of its Subsidiaries shall become treasury stock purchase agreement or other agreementof Parent.
Appears in 2 contracts
Sources: Merger Agreement (Republic First Bancorp Inc), Merger Agreement (Pennsylvania Commerce Bancorp Inc)
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan"i) dated as of April 21, 1995, as amended, between If the Company does not exercise its option set forth in Section 2.01(b)(ii):
(A) each Share (other than Excluded Shares and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"Dissenting Stockholder Shares) issued and outstanding immediately prior to the Effective TimeTime shall be converted into and shall thereafter represent the right to receive, other than any subject to Section 2.02(b)(v), (I) an amount in cash equal to $7.89 without interest (the “Cash Consideration”), (II) the principal amount of $3.30 of a Convertible Note on the terms and conditions set forth in the form of Indenture attached hereto as Exhibit B (the “Convertible Note Consideration”), (III) that number of validly issued, fully paid and non-assessable shares of common stock, par value $0.01 per share, of Parent (the “Parent Common Stock”) (the “Signing Stock Consideration”) equal to the quotient determined by dividing $3.31 by the Signing Measurement Price and rounding the result to the nearest 1/100,000 of a share (the “Signing Exchange Ratio”), provided, however, that if the Signing Measurement Price is less than $27.51, the Signing Exchange Ratio will be 0.120 and if the Signing Measurement Price is greater than $33.62, the Signing Exchange Ratio will be 0.098 and (IV) that number of validly issued, fully paid and non-assessable shares of Parent Common Stock (the “Additional Stock Consideration” and together with the Signing Stock Consideration, the “Stock Consideration”) equal to the quotient determined by dividing $0.75 by the Closing FMV and rounding the result to the nearest 1/100,000 of a share (the “Additional Exchange Ratio”).
(ii) The Company, with 313 Acquisition’s consent, will have the option, exercisable by written notice delivered to Parent and Merger Sub prior to the Proxy/S-4 being declared effective by the SEC and no later than 75 days after the date of this Amendment (or such earlier date on which the Company informs Parent in writing that it does not intend to exercise the election) (the “Section 2.01 Notice”), to elect to have the conversion of the Company Common Stock to be canceled effected as follows:
(A) Each Share (other than Excluded Shares and Dissenting Stockholder Shares) issued and outstanding immediately prior to the Effective Time that is not owned by 313 Acquisition (such shares, the “Public Shares”) shall be converted into and shall thereafter represent the right to receive, subject to Section 2.02(b)(v), (I) an amount in cash equal to the Cash Consideration, (II) an additional amount in cash, the amount of which, or the terms for determining such amount (or a combination of the two), as is specified by the Company in the Section 2.01 Notice, which amount or terms represent the Company’s determination of the fair market value of the Stock Consideration and the Convertible Note Consideration that would have otherwise been payable in respect of each of the Public Shares (the per share amounts payable pursuant to this clause (II), the “Additional Cash Consideration”, and together with the Cash Consideration, the “Public Cash Consideration”). In connection with the Company’s specification of the amount of Additional Cash Consideration, such specification shall have been approved by the Company’s Board after receiving advice from the Company Board’s outside counsel and from an independent financial adviser who shall have provided an opinion, based on the various assumptions, qualifications and limitations contained therein, to the effect that the terms of the exchange of the Additional Cash Consideration for the reallocation to 313 Acquisition of the Stock Consideration and the Convertible Note Consideration otherwise going to the holders of the Public Shares, separately or in the aggregate, is fair, from a financial point of view, to such holders.
(B) The Shares issued and outstanding immediately prior to the Effective Time that are owned by 313 Acquisition (such shares, the “313 Shares”) shall be converted into and shall thereafter represent the right to receive, subject to Section 2.02(b)(v), (I) for each such 313 Share, an amount in cash equal to the Cash Consideration less the aggregate amount of Additional Cash Consideration, as allocated equally among such 313 Shares, (II) for each such 313 Share, the Convertible Note Consideration, (III) for all such 313 Shares, the aggregate amount of Convertible Note Consideration that would have been payable with respect to all of the Public Shares pursuant to Section 1.6(b2.01(b)(i), will allocated equally among such 313 Shares, (IV) for each such 313 Share, the Signing Stock Consideration, (V) for all such 313 Shares, the aggregate amount of Signing Stock Consideration that would have been payable with respect to all of the Public Shares pursuant to Section 2.01(b)(i), allocated equally among such 313 Shares, (VI) for each such 313 Share, the Additional Stock Consideration, and (VII) for all such 313 Shares, the aggregate amount of Additional Stock Consideration that would have been payable with respect to all of the Public Shares pursuant to Section 2.01(b)(i), allocated equally among such 313 Shares.
(iii) For purposes of this Agreement, other than as specified in the next sentence, the “Merger Consideration” shall mean the Stock Consideration, together with the Cash Consideration, and the Convertible Note Consideration. However, in the event the Company elects to exercise its option pursuant to Section 2.01(b)(ii), “Merger Consideration” shall mean, with respect to the Public Shares, the Public Cash Consideration, and with respect to the 313 Shares, “Merger Consideration” shall mean the consideration allocated to each 313 Share in accordance with Section 2.01(b)(ii)(B) above. For the avoidance of doubt, the total amounts of the Cash Consideration, Stock Consideration and Convertible Note Consideration to be paid by Parent and Merger Sub pursuant to Section 2.01(b)(i) shall not change (but shall only be reallocated among the Company’s shareholders) in the event the Company elects to exercise its option pursuant to Section 2.01(b)(ii), other than due to the existence of Excluded Shares and Dissenting Shares. From and after the Effective Time, subject to Section 2.02(h), all of such Shares (other than Excluded Shares and Dissenting Stockholder Shares) shall no longer be outstanding and shall automatically be canceled and extinguished retired and automatically converted shall cease to exist, and each certificate (subject to Sections 1.6(ea “Certificate”) representing any Shares (other than Excluded Shares and Dissenting Stockholder Shares) and each non-certificated Share represented by book-entry (f)a “Book-Entry Share”) into (other than Excluded Shares and Dissenting Stockholder Shares) shall thereafter represent only the right to receive that number the applicable Merger Consideration as described above and any cash in lieu of fractional shares of Parent Common Stock of Parent equal to be issued or paid in consideration therefor as contemplated by Section 2.02(b)(v) and any dividends or other distributions to which holders become entitled upon the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares Certificate or receipt of Company Common Stock an “agent’s message” in accordance with Section 2.02, all without interest (except as otherwise provided in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9Convertible Notes). "Exchange Ratio" shall mean 0.1095; providedFor purposes of this Agreement, that if (A) the “Signing Measurement Price” means the volume weighted average closing sale price of one per share of Parent Common Stock as reported (rounded down to the nearest cent) on the New York Stock Exchange (the "“NYSE"”) for the ten thirty (1030) consecutive trading days ending on (and including) the third (3rd) trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option(as reported by The Wall Street Journal for each such trading day, risk of forfeiture or or, if not reported by The Wall Street Journal, any other condition under any applicable restricted stock purchase agreement or other agreement with authoritative source mutually agreed by Parent and the Company, then ); and (B) the shares “Closing FMV” means the volume weighted average price per share of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (rounded down to the same repurchase optionnearest cent) on the NYSE for the five (5) consecutive trading days ending on (and including) the second (2nd) trading day immediately prior to the Effective Time (as reported by the Wall Street Journal for each such trading day, risk of forfeiture or or, if not reported by the Wall Street Journal, any other condition, authoritative source mutually agreed by Parent and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementCompany).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vivint Solar, Inc.), Agreement and Plan of Merger (Sunedison, Inc.)
Conversion of Company Common Stock. (i) Each share of Common Stockcommon stock, $0.01 par value per sharevalue, of the Company including, with respect to each such share of (“Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"”) issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b)) and Dissenting Shares, will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that (A) the number of validly issued, fully paid and nonassessable shares of Common Stock of Parent’s Series B Convertible Perpetual Preferred Stock, par value $0.001 per share, with the terms attached hereto as Exhibit B (the “Parent Series B Preferred Stock”), equal to the “Exchange Ratio Ratio” (as defined belowin Section 1.6(a)(ii)) and (B) $6.50 in cash, without interest (the "“Cash Portion” and together with the shares of Parent Common Stock") Series B Preferred Stock in the foregoing clause the “Merger Consideration”), upon surrender of the certificate representing such shares share of Company Common Stock in the manner provided in Section 1.7 (or in the case 1.7. No fraction of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Series B Preferred Stock as reported on will be issued by virtue of the New York Stock Exchange (Merger, but in lieu thereof, a cash payment shall be made pursuant to Section 1.7(e). Notwithstanding anything herein to the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00contrary, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If at any shares of Company Common Stock outstanding immediately time prior to the Effective Time are unvested or are Closing Date, as determined by Parent in its sole discretion, Parent may elect to pay the aggregate Merger Consideration (which, for avoidance of doubt, shall include such amounts attributable to the Parent Series B Preferred Stock and the Cash Portion in the immediately preceding sentence) as $39.00 in cash, without interest, in which case all references in this Agreement to the “Cash Portion” of the Merger Consideration shall be deemed to be references to such aggregate amount of cash, without interest, and all references in this Agreement to “Parent Series B Preferred Stock” shall be deemed to be deleted, and, notwithstanding anything herein to the contrary, (i) no party to this agreement shall have any obligation to consummate the Upstream Merger and any references to the Upstream Merger in this Agreement shall be deemed to be deleted, (ii) it will not be intended that the Merger shall qualify as a reorganization described in Section 368(a) of the Code, and (iii) the following provisions of this Agreement shall be deemed to be deleted: Section 5.15, Section 5.19, Section 6.2(e) and Section 6.3(f).
(ii) For purposes of this Agreement, the “Exchange Ratio” shall be equal to 0.08125 subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right adjustment as set forth in any such restricted stock purchase agreement or other agreementSection 1.6(f).
Appears in 2 contracts
Sources: Merger Agreement (Matria Healthcare Inc), Merger Agreement (Inverness Medical Innovations Inc)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive (i) that number of shares of Common Stock of Parent equal (rounded to the Exchange Ratio (as defined belownearest 1/10,000 of a share) (the "Exchange Ratio") of validly issued, fully paid and nonassessable shares of Parent Common StockStock (the "Stock Portion") upon surrender of equal to the certificate representing number determined by dividing $45.60 by the Average Parent Stock Price; provided, however, that (x) if the number determined by dividing $45.60 by the Average Parent Stock Price is less than or equal to 0.6797, the Exchange Ratio shall be 0.6797 and (y) if the number determined by dividing $45.60 by the Average Parent Stock Price is greater than or equal to 0.8224, the Exchange Ratio shall be 0.8224 and (ii) $30.40 in cash, without interest (the "Cash Portion" and, together with the Stock Portion, the "Merger Consideration"). At the Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a "Certificate") shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Merger Consideration, risk of forfeiture any dividends or other conditiondistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e), in each case to be issued or paid in consideration therefor upon surrender of such Certificate in accordance with Section 2.02(b), without interest. Notwithstanding the foregoing, if between the date of this Agreement and the certificates representing such Effective Time, (A) the outstanding shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary have been changed into a different number of shares or a different class, by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, (B) Parent declares or pays cash dividends in any fiscal quarter in excess of 200% of the amount of regularly quarterly dividends paid by the Parent immediately prior to ensure thatthe date hereof or (C) Parent engages in any spin-off or split-off, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth then in any such restricted stock purchase agreement or other agreement.case the Exchange Ratio shall be appropriately adjusted to reflect such action. The right
Appears in 2 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Guidant Corp)
Conversion of Company Common Stock. Each share (a) At the Effective Time, by virtue of Common Stockthe Merger and without any further action on the part of Crossbox, $0.01 par value per shareMerger Sub, the Company or any stockholder of Company including, with respect to the Company:
(a) each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21if any, 1995, as amended, between then held by the Company and American Stock Transfer and Trust Company as Rights Agent(or held in the Company’s treasury) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will shall be canceled and extinguished retired and automatically converted shall cease to exist, and no consideration shall be delivered in exchange therefor;
(subject b) each share of common stock of Merger Sub, if any, then held by Crossbox, Merger Sub or any other wholly-owned Subsidiary of Crossbox shall be canceled and retired and shall cease to Sections 1.6(eexist, and no consideration shall be delivered in exchange therefor;
(c) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender all of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject shall be converted into the right to a repurchase option, risk receive the Merger Shares; being that number of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Crossbox Common Stock equal to (A) 32,291,287 shares of Crossbox Common Stock (the “Merger Shares”) or such other number of shares of Crossbox Common Stock as shall represent approximately seventy one and one-half (71.5%) percent of the total number of shares of Crossbox Common Stock immediately following to the Effective Time that is and would be issued and outstanding, calculated on a Fully Diluted Basis, less (B) all shares of Crossbox Common Stock reserved for issuance upon conversion of outstanding convertible notes of Crossbox issued at the Effective Time (the “Crossbox Convertible Notes”) in exchange for a like principal amount of outstanding “Company Notes” (defined below),
(d) all of the issued and outstanding Company convertible notes (the “Company Notes”) that have not been converted into Company Common Stock and are outstanding as at the Effective Time shall be exchanged for a like principal amount of Crossbox Convertible Notes, which shall be convertible at any time by the holder into that number of shares of Crossbox Common Stock equal to (A) 32,291,287 shares of Crossbox Common Stock or such other number of shares of Crossbox Common Stock as shall represent approximately seventy one and one-half (71.5%) percent of the total number of shares of Crossbox Common Stock immediately following to the Effective Time that is and would be issued and outstanding, calculated on a Fully Diluted Basis, less (B) all shares of Crossbox Common Stock issued in exchange for such shares as at the Effective Time to the holders of Company Common Stock;
(e) subject to the adjustment provisions of Section 1.7(a), Section 1.5(d) and Section 1.5(e) hereof, (A) each share of Company Common Stock will also be unvested and subject outstanding immediately prior to the same repurchase option, risk Effective Time shall be converted into the right to receive that number of forfeiture or other conditionshares of Crossbox Common Stock equal to the Applicable Multiplier, and (B) each share of Company Common Stock that would have been issuable immediately prior to the certificates representing such Effective Time upon conversion of Company Notes shall, pursuant to the Crossbox Convertible Notes, be converted into the right to receive that number of shares of Parent Crossbox Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary equal to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.Applicable Multiplier;
Appears in 1 contract
Conversion of Company Common Stock. Each share At the Effective Time, without any action on the part of Common Stock, $0.01 par value per share, of Company including, with respect to each such share the Parties or the holders of Company Common Stock, the associated Rights Merger shall be effected in accordance with the following terms:
(as defined in that certain Rights Agreement a) Each share of common stock, par value $0.01 per share, of Purchaser (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Purchaser Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares Time shall be converted into and exchanged for the right to receive one share of common stock of the Surviving Corporation.
(b) Each share of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled issued and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time (excluding shares cancelled pursuant to Section 3.3 and Dissenting Shares), together with the Company Rights issued pursuant to the Company Rights Agreement (as such terms are unvested or are defined in Section 5.16), shall, subject to the provisions of Section 3.7, be converted into and exchanged for the right to receive (i) $13.00 in cash (without interest), plus (ii) a repurchase optionnumber of fully paid, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the nonassessable shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested (together with the Parent Rights associated therewith) equal to $6.50 divided by the Applicable Price (the "Exchange Ratio") ((i) and (ii) collectively, the "Per Share Merger Consideration"); provided, however, Parent may, at its sole option, adjust the Per Share Merger Consideration so that the Per Share Merger Consideration would instead, subject to the same repurchase optionprovisions of Section 3.7, risk consist of forfeiture (A) an amount (determined by Parent) in cash (without interest) greater than $13.00 but less than or other conditionequal to the Total Per Share Amount (the "Adjusted Cash Amount"), and the certificates representing such plus (B) a number of fully paid, nonassessable shares of Parent Common Stock (together with the Parent Rights associated therewith) equal to (1) the amount, if any, by which the Total Per Share Amount exceeds the Adjusted Cash Amount, divided by (2) the Applicable Price (the "Adjusted Exchange Ratio"). If Parent adjusts the Per Share Merger Consideration in accordance with the foregoing proviso, Parent shall deliver written notice to the Company and the stockholders of the Company at least five (5) Business Days prior to the Company Stockholders' Meeting (as hereinafter defined), which written notice shall set forth the Adjusted Cash Amount and the Adjusted Exchange Ratio. It is expressly understood that Parent may accordingly be marked satisfy such notice obligation with appropriate legendsrespect to stockholders of the Company by issuing a press release in accordance with Parent's normal business practices. The Company Exchange Ratio or the Adjusted Exchange Ratio, as applicable, shall take all action that may be necessary rounded to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementnearest one-ten thousandths of a share.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any Canceled Shares and any Dissenting Shares) shall be converted into the right to receive:
(i) from Parent, an amount equal to the quotient of: (A) the Closing Aggregate Merger Consideration minus the sum of (x) the Deposit, (y) the Post-Closing Escrow Amount, and (z) the Shareholders’ Representative Expense Fund, divided by (B) the total number of shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled issued and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject (other than any Canceled Shares), calculated to a repurchase optionthe nearest one one-hundredth of one cent (the “Closing Per Share Merger Consideration”);
(ii) from Parent, risk upon release of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the CompanyDeposit Escrow Account to Parent as provided in Section 5.14(b), then an amount equal to the shares quotient of (A) the amount of the Deposit Escrow Account so released to Parent divided by (B) the number of Shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any Canceled Shares), calculated to the nearest one one-hundredth of one cent (the “Deposit Per Share Merger Consideration”).
(iii) from Parent, the True Up Per Share Merger Consideration, if any, in exchange for such accordance with Section 2.10;
(iv) from the Shareholders’ Representative, amounts equal to the quotient of (A) distributions from the Post-Closing Escrow Account, made from time to time to the Shareholders’ Representative, in accordance with this Agreement divided by (B) the number of shares of Company Common Stock will also be unvested issued and subject outstanding immediately prior to the same repurchase optionEffective Time (other than any Canceled Shares), risk calculated to the nearest one one-hundredth of forfeiture or other conditionone cent (the “Post-Closing Escrow Per Share Merger Consideration”); and
(v) from the Shareholders’ Representative, and amounts equal to the certificates representing such quotient of (A) the Shareholders’ Representative Expense Fund Residual, if any, divided by (B) the number of shares of Parent Company Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary issued and outstanding immediately prior to ensure that, from and after the Effective TimeTime (other than any Canceled Shares), Parent is entitled calculated to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementthe nearest one one-hundredth of one cent (the “Residual Expense Fund Per Share Merger Consideration”).
Appears in 1 contract
Conversion of Company Common Stock. Each share Subject to the following provisions of Common Stockthis Section 2.1(d), $0.01 par value per share, of Company including, with respect to each such share of Company Common StockStock issued and outstanding immediately before the Effective Time, other than shares to be canceled in accordance with Section 2.1(b) and any Dissenting Shares, shall be converted into the right to receive, in the manner provided by Section 2.2, the associated Rights (as defined amount in that certain Rights Agreement cash, without interest (the "Company Rights Plan"Per Common Share Merger Consideration" ) dated as equal to the quotient produced by dividing (i) the remainder of April 21, 1995, as amended, between (A) the Company and American Stock Transfer and Trust Company as Rights Agent) sum of $ 130,000,000 (the "Base Purchase Price" ), plus the Estimated Excess, if any, plus the Aggregate Option Exercise Price Proceeds, plus the Aggregate Warrant Exercise Price Proceeds minus (B) the sum of the Preferred Stock Merger Consideration, all Company Expenses, the Estimated Underage, if any, and the Escrow Amount, by (ii) the number of shares of Company Common Stock"Stock equal to the sum of (A) issued the number of shares of Company Common Stock outstanding immediately before the Effective Time (including any Dissenting Shares), (B) any shares of Company Common Stock that, immediately before the Effective Time, would be issuable upon exercise in full of all Options (including the Modified Options), whether or not then vested, that are outstanding as of such time, (C) any shares of Company Common Stock issuable upon conversion of all shares of Series D Preferred Stock outstanding immediately before the Effective Time and (D) any shares of Company Common Stock issuable upon exercise (directly or indirectly) in full of all the Series C Warrants or Series D Warrants outstanding immediately prior to the Effective Time), other than but excluding for this purpose any outstanding shares of Company Common Stock to be canceled cancelled at the Effective Time pursuant to Section 1.6(b2.1(b)); provided, will however, that the Per Common Share Merger Consideration shall be subject to adjustment as provided by Article VIII. The holders of shares of Company Common Stock entitled to receive the Per Common Share Merger Consideration are herein collectively referred to as the "Company Stockholders"). The Preferred Stock Merger Consideration plus the remainder of (i) the aggregate of all Per Common Share Merger Consideration minus (ii) the sum of the Aggregate Option Exercise Price Proceeds plus the Aggregate Warrant Exercise Price Proceeds is herein referred to as the "Merger Consideration." As of the Effective Time, all shares of Company Common Stock shall cease to be outstanding and shall automatically be canceled and extinguished shall no longer is issued or authorized, and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number each holder of shares of Common Stock of Parent equal a certificate which immediately prior to the Exchange Ratio Effective Time (as defined belowgiving effect to Section 5.11) (the "Parent Common Stock") upon surrender of the certificate representing represented any such shares of Company Common Stock (each, a "Common Certificate" and each Common Certificate or Preferred Certificate, a "Certificate" ) shall cease to have any rights with respect thereto, except the right to receive the Per Common Share Merger Consideration to be paid in the manner consideration therefor as provided in Section 1.7 (or herein upon surrender of such Common Certificate, without interest, or, in the case of Dissenting Shares, the amount provided for by Section 2.1(h) and applicable law. In addition to any amounts payable pursuant to this Section 2.1(d), a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares holder of Company Common Stock outstanding as of immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will may also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth additional amounts in any such restricted stock purchase agreement or other agreementaccordance with Sections 2.1(g) and 2.2(b).
Appears in 1 contract
Conversion of Company Common Stock. Each share At the Effective Time, by virtue of the Merger and without any action on the part of any holder of capital stock of Buyer, Acquisition, Company or Sellers: (i) the shares of Common StockStock of Acquisition purchased, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective TimeTime shall be converted as a result of the Merger and without any action on the part of the holder thereof, other than any into 100 shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled capital stock of the Surviving Corporation and extinguished shall represent all the issued and automatically converted (subject to Sections 1.6(e) outstanding shares of the Surviving Corporation; and (f)ii) the shares of the Company held by Sellers shall be converted into and shall become, without further action on the part of the Sellers, the right to receive that receive, at Closing and on a pro rata basis, the following: (a) Two Million Six Hundred Fifty Thousand Dollars ($2,650,000) by wire transfer or certified check; (b) the number of shares of restricted Common Stock of Buyer having a value of Six Million Five Hundred Fifty Thousand Dollars ($6,550,000), which number of shares of Common Stock shall be determined by dividing such dollar amount by the initial public offering price of Parent equal Buyer's Common Stock (the "IPO Price"), and; (c) the contingent right to receive additional consideration as follows:
(1) As promptly as practicable following December 31, 1998, the Exchange Ratio independent public accounting firm then employed by Buyer shall determine, in accordance with GAAP except for the guidelines set forth in clause (2) below, the Company's earnings before interest, taxes, depreciation and amortization ("EBITDA") for the year ended December 31, 1998 (the "1998 EBITDA"). Buyer shall notify Sellers of the determination of the 1998 EBITDA as soon as it is received.
(2) The EBITDA determination provided for in clause (1) above shall be done in such a way as to simulate that the merger transaction provided for in this Agreement ("Transaction") had not occurred and that the Company had remained a separately owned enterprise. For example, it is intended that such determination will, whether or not recorded on the financial statements of Company, Acquisition or Buyer, disregard and exclude (A) all costs associated with the consummation of the Transaction, (B) all general and administrative, overhead and other costs and expenses over and above those customarily incurred by the Company in the period preceding the Transaction, and (C) all net income resulting from the integration of the operations of other enterprises with those of the Company after the Transaction. In addition, in order to facilitate comparison of the two periods, the EBITDA determinations for the periods ending December 31, 1997 and December 31, 1998 will be adjusted in regard to compensation, bonuses, and distributions paid to Sellers during such periods as follows:
(A) The 1997 EBITDA (as defined below) has been adjusted to eliminate as costs all compensation, bonuses and distributions paid by the Company to Sellers in excess of $300,000.
(B) In determining the 1998 EBITDA, if compensation, bonuses and distributions paid to Sellers exceed $300,000, the amount of such excess will be added back as an increase to the 1998 EBITDA.
(3) It is stipulated that, solely for the purposes hereof, the EBITDA of the Company for the year ended December 31,1997 (taking into account the provisions of clause (2) above), was $1,231,000 (the "Parent Common Stock1997 EBITDA"). The EBITDA determination for the year ended December 31, 1998, shall be done in a manner consistent with the determination for the year ended December 31, 1997.
(4) upon surrender If the 1998 EBITDA exceeds the 1997 EBITDA, the amount of such excess shall be multiplied by 3.05 and the certificate representing such shares of Company Common Stock resulting sum shall be the "Difference," provided, however, that in no event shall the manner Difference exceed $3,500,000. If, in calculating the 1998 EBITDA, an adjustment was made as provided in Section 1.7 clause (or 2)(B) above in regard to compensation, bonuses and distributions paid to Sellers, then the case of a lostamount so added back as an increase to the 1998 EBITDA will be subtracted from the Difference, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" resulting sum shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (be the "NYSE"Adjustment Amount." If no such adjustment was made, the Difference shall be the Adjustment Amount.
(5) for the The Adjustment Amount shall be paid to Sellers (one-half thereof to each of Sellers) within ten (10) consecutive trading days ending on after the trading day immediately preceding determination of the Closing Date 1998 EBITDA as follows: (A) by the "Average Price"issuance to Sellers (one-half to each of Sellers) is less than $24.00of the number of shares of restricted Common Stock of Buyer having a value equal to seventy percent (70%) of the Adjustment Amount, Exchange Ratio which number of shares of Common Stock shall mean the quotient be determined by dividing 2.628 70% of the Adjustment Amount by the Average IPO Price; , provided, furtherhowever, that if the Average Price is higher than $30.00number of shares so issued shall not exceed the number of shares issued to Sellers at Closing, Exchange Ratio shall mean the quotient determined by dividing 3.285 and (B) by the Average Price. If any shares payment to Sellers (one-half to each of Company Common Stock outstanding immediately prior Sellers) of an amount in cash equal to the Effective Time are unvested or are subject to a repurchase option, risk Adjustment Amount LESS the value (at the IPO Price) of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock of Buyer issued in exchange for such shares to Sellers pursuant to clause (A) above.
0.0.4 The first sentence of Company Common Stock will also be unvested and subject Section 9.1 of the Merger Agreement is amended to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.read as follows:
Appears in 1 contract
Conversion of Company Common Stock. (a) Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective TimeTime (including, other than without limitation, shares of Common Stock issued upon the exercise, cashless or otherwise, of any Options prior to the Effective Time and excluding shares of Company Common Stock to owned by the Company or held in the treasury of the Company, all of which shall be canceled pursuant without any consideration being exchanged therefor, and excluding Appraisal Shares which shall only have the rights set forth in Section 2.17) shall, subject to Section 1.6(b)2.10, will by virtue of the Merger and without any action by the holder thereof, be deemed canceled and extinguished converted into and automatically converted (subject to Sections 1.6(e) and (f)) into shall represent the right to receive that an amount in cash, without interest (the “Per Share Merger Consideration”), calculated as the quotient obtained by dividing:
(i) the amount (the “Merger Consideration”) obtained by subtracting (A) to the extent not paid prior to the Closing, the sum of (1) the Company Indebtedness outstanding immediately prior to the Closing, (2) the Transaction Fees and (3) the Aggregate Phantom Option Payment, from (B) the sum of (1) the aggregate exercise price of all Options and Warrants outstanding at the Effective Time, (2) the Tax Adjustment Amount, if any, and (3) $340,000,000 (the “Baseline Merger Consideration”), such Baseline Merger Consideration subject, as the case may be, to (X) reduction, in the event the Closing Working Capital (as hereinafter defined) is less than $4,000,000 (the “Baseline Working Capital”), by the amount of such deficiency, or (Y) increase, in the event the Closing Working Capital is more than the Baseline Working Capital, by the amount of such excess, in accordance with terms of Section 12.3 hereof, by
(ii) the sum of (A) the number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (issued and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option(including, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Companywithout limitation, then the all shares of Parent Company Common Stock issued upon the exercise, cashless or otherwise, of any Options prior to the Effective Time and excluding shares of Company Common Stock owned by the Company or held in exchange the treasury of the Company), and (B) the total number of shares of Company Common Stock subject to any Option or Warrant outstanding at the Effective Time (the “Common Stock Equivalents”); provided, however, that, for purposes of the payment provisions after the Effective Time hereinafter set forth under Section 2.11, at Closing each Company Stockholder as of immediately prior to the Effective Time shall be entitled to receive for each share of Company Common Stock held by such holder immediately prior to the Effective Time, an amount (the “Common Stock Closing Payment”) equal to (i) the Per Share Merger Consideration (calculated at Closing and, solely for purposes of calculating the Common Stock Closing Payment, replacing the term “Closing Working Capital” in clauses (X) and (Y) of Section 2.7(i) with “Estimated Working Capital” and replacing the term “Section 12.3” with “Section 12.1”; such amount hereinafter referred to as the “Closing Per Share Merger Consideration”) minus (ii) an amount equal to (A) the Escrow Deposit Per Share plus (B) any Taxes required to be withheld in connection with such payment. All such shares of Company Common Stock will also Stock, when so converted, shall no longer be unvested outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time represented any such shares shall cease to have any rights with respect thereto, except the right, subject to the same repurchase optionprovisions of the Escrow Agreement, risk to receive the Per Share Merger Consideration upon the surrender of forfeiture or other conditionsuch certificate in accordance with this Article II.
(b) For purposes of this Agreement, the “Tax Adjustment Amount” means the amount of $8,550,000, which amount is intended to reflect a tax benefit accruing to the Company and which amount is payable to the Securityholders in accordance with the terms of this Article II, if, and only if, (i) the certificates representing such shares Company has obtained and delivered to the Parent a valid written approval of Parent Common Stock may accordingly the Company Stockholders, in accordance with and sufficient to satisfy the shareholder requirements of Section 280(G)(b)(5) of the Code, approving all benefits and payments that are contingent on the consummation of the transactions contemplated by this Agreement, which amounts would be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after “excess parachute payments” within the Effective Time, Parent is entitled to exercise any such repurchase option or other right meaning set forth in any Section 280G of the Code if such restricted stock purchase agreement payments were not approved by the Company Stockholders in accordance with Section 280G(b)(5) of the Code and (ii) the Closing occurs on or other agreementbefore March 30, 2012. The parties hereto agree that in the event that either of the foregoing conditions is not met, the Tax Adjustment Amount shall not be paid or payable to the Securityholders.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to At the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any all shares of Company Common Stock outstanding immediately prior to before the Effective Time are unvested or are subject to a repurchase optionTime, risk other than shares described in Section 2.5(b) and other than Dissenting Shares (as defined in Section 2.8), collectively, the “Excluded Shares”, shall be converted, by virtue of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the CompanyMerger, then the into such number of shares of Parent Common CHYU Series B Convertible Preferred Stock issued in exchange for such shares (the “Merger Shares”) so, that the holders of Company Common Stock will also be unvested upon conversion of the Merger Shares own 90.0% of CHYU’s issued and outstanding capital stock as of the Effective Time after giving effect to the Merger (the “Effective Time Capitalization”) subject to the same repurchase option, risk following:
(i) The allocation of forfeiture or other condition, the Merger Shares among the Company Shareholders excluding the holders of Dissenting Shares shall be as set forth on Schedule 2.5(a) to be delivered to CHYU at least three business days prior to the Closing;
(ii) If between the date of this Agreement and the certificates representing such shares of Parent Closing Date, CHYU shall declare a stock split or declare a dividend on CHYU Common Stock may accordingly payable in CHYU Common Stock (or set a record date with respect thereto), the number of Merger Shares and shares issuable upon conversion of the CHYU Series B Convertible Preferred Stock (the “Preferred Shares”) determined above shall be marked with adjusted to reflect fully the appropriate legendseffect of any such subdivision, combination or dividend; and
(iii) Such number of Merger Shares issued to 3253517 Nova Scotia Limited, an entity controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, which upon conversion would represent 15.0% of the Effective Time Capitalization (the “Escrowed Shares”), shall be held in escrow following the Closing by an escrow agent mutually acceptable to CHYU and the Company, subject to achievement of the following performance milestones: (x) the Company or CHYU raising a minimum of $1,000,000 at an enterprise valuation of $25,000,000 within 90 days of the Closing Date (the “Raise Period”); (y) to the extent a shortfall occurs a pro rata adjustment will be made based on the amount raised and the enterprise valuation; and (z) to the extent the Company or CHYU raises at least $250,000 within the Raise Period, such Raise Period shall be extended 60 days. The Company In the event such appropriate performance milestones have not been achieved by the end of the Raise Period as extended hereby, then in that event, all of the Escrowed Shares or such appropriate portion thereof pursuant to the performance milestones provided herein shall take be returned to CHYU and cancelled. Notwithstanding the foregoing, unless all action that may of the Escrowed Shares have been returned to CHYU and cancelled at the end of the Raise Period pursuant to the terms hereof, such remaining Escrowed Shares shall continue to be necessary to ensure that, held in escrow for a period of six (6) months from and after the Effective Time, Parent is entitled subject to exercise the terms and conditions of a mutually acceptable escrow agreement. At the Effective Time, all Company Shares shall no longer be outstanding and shall be cancelled and retired and shall cease to exist, and each certificate formerly representing any such repurchase option Company Common Stock (other than Excluded Shares) shall thereafter represent only the right to the Merger Shares and any distribution or other right set forth in any such restricted stock purchase agreement or other agreementdividend pursuant to Section 2.6(b).
Appears in 1 contract
Conversion of Company Common Stock. Each share (i) Except as otherwise provided in the Agreement and this Plan of Merger, at the Effective Time all outstanding shares of Company Common Stock, $0.01 par value per shareand all rights associated therewith, shall cease to be outstanding and, as consideration for and to effect the Merger, and in the manner and subject to the limitations described in the Agreement and this Plan of Merger, each such outstanding share (not to exceed in the aggregate the 5,397,768 shares of Company includingVoting Common Stock and 1,400,437 shares of Company Nonvoting Common Stock which were outstanding on the date of the Agreement, and, subject to their vesting and, if not previously issued, their actual issuance prior to the Effective Time, up to a maximum of:
(A) 124,686 additional shares of Company Voting Common Stock which could be issued after the date of the Agreement and prior to the Effective Time upon the exercise of Company Stock Options which were issued prior to the date of the Agreement and have not been terminated or cancelled and which shall not previously have been exercised;
(B) 394,125 additional shares of Company Voting Common Stock issued by the Company prior to the date of the Agreement, subject to restrictions, which could become fully vested after the date of the Agreement and prior to the Effective Time pursuant to the terms of the Company Stock Purchase Agreements;
(C) 1,400,437 additional shares of Company Voting Common Stock which could be issued, on a share-for-share basis, after the date of the Agreement and prior to the Effective Time upon the conversion of shares of Company Nonvoting Common Stock outstanding on the date of the Agreement in accordance with respect the terms of that stock as provided in the Company's Second Amended and Restated Articles of Incorporation, provided, that upon any such conversion of any shares of Company Nonvoting Common Stock, the shares so converted shall be cancelled and the number of outstanding shares of such stock shall be reduced by one share for each new share of Company Voting Common Stock into which the Company Nonvoting Common Stock is converted; and
(D) 3,300 additional shares of Company Voting Common Stock which could be issued after the date of this Agreement and prior to each such the Effective Time pursuant to that certain letter agreement dated August 3, 2015, between the Company's wholly-owned subsidiary, Bank of Virginia, and O▇▇▇▇ ▇▇▇▇▇▇ ("Ed") B▇▇▇▇▇; and all rights associated therewith, without any action by the Company, Parent or any holder of those shares, shall be exchanged for and converted into the right to receive cash from Parent in the amount of $5.15 per share of Company Common Stock, subject to adjustment as provided in Paragraph 2.04(i) of the associated Rights (as defined in that certain Rights Agreement and Section 9 of this Plan of Merger (the "“Per Share Merger Consideration”), but not more than an aggregate of $35,010,756 for all shares outstanding on the date of this Agreement, plus such additional amount, if any, calculated based on the Per Share Merger Consideration as shall be payable for additional shares of Company Rights Plan"Voting Common Stock described above that are issued or, in the case of (B) dated as of April 21above, 1995that become vested, as amended, between following the Company date hereof and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any and all those shares of Company Common Stock to shall be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementcancelled.
Appears in 1 contract
Conversion of Company Common Stock. As of the Effective Time, by ---------------------------------- virtue of the Merger and without any action on the part of any shareholder of either of the Constituent Corporations:
(a) All issued and outstanding shares of capital stock of Mergerco shall continue to be issued and outstanding shares of the Surviving Corporation. Each share certificate of Common Stock, $0.01 par value per share, Mergerco evidencing ownership of Company including, with respect any such shares shall continue to each such evidence ownership of the same number of shares of capital stock of the Surviving Corporation.
(b) Each issued and outstanding share of Company Common Stock, Stock which under the associated Rights terms of Section 2.6 is to be converted ----------- into cash shall be converted into the right to receive in cash an amount equal to the Company Purchase Price Per Share (as defined in that certain Rights Agreement Section 2.7). -----------
(the "Company Rights Plan"c) dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any All shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will that are held in treasury of the Company shall be canceled and extinguished no capital stock of Buyer, cash or other consideration shall be delivered in exchange therefor.
(d) Except as provided in Section 2.6 and automatically converted (subject to Sections 1.6(e) 2.9 ----------- ------------ and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares 2.10, each share of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (issued and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding ---- immediately prior to the Effective Time are unvested (other than shares to be converted into cash in accordance with Section 2.5(b) or are subject to a repurchase optioncanceled in accordance with -------------- Section 2.5(c)) shall be converted into the number (the "Conversion -------------- ---------- Number") of validly issued, risk fully paid and nonassessable shares of forfeiture or other condition under any applicable restricted common ------ stock, par value $.01 per share, of Buyer, together with associated preferred stock purchase agreement rights (collectively, the "Buyer Common Stock"), ------------------ rounded to the nearest hundredth of a share, or other agreement with if there shall not be a nearest hundredth of a share, to the Companynext lower hundredth of a share, then determined by dividing the shares of Parent Common Stock issued in exchange for such Company Purchase Price Per Share by $27.00 per share.
(e) All shares of Company Common Stock will also when so converted as provided in Sections 2.5(b) and 2.5(d), as the case may be, --------------- ------ shall no longer be unvested outstanding and subject shall automatically be canceled and retired and each holder of a certificate theretofore representing any such shares shall cease to have any rights with respect thereto, except the right to receive, in accordance with Section 2.8, the shares of Buyer Common Stock and/or cash into ----------- which such shares are convertible, cash in lieu of fractional shares as contemplated by Section 2.10 (collectively, "Merger ------------ Consideration") and certain dividends and other distributions as contemplated by Section 2.9. -----------
(f) Notwithstanding anything in this Agreement to the same repurchase optioncontrary, risk the Shareholders, each of forfeiture or other conditionwhom is a party hereto, by virtue of their execution of this Agreement, have approved the Plan of Merger and the certificates representing such Merger and have waived any and all rights that they might otherwise have to dissent from the Plan of Merger and to demand appraisal for their shares of Parent Common Company Stock may accordingly be marked in accordance with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementCBCA.
Appears in 1 contract
Sources: Merger Agreement (Aptargroup Inc)
Conversion of Company Common Stock. Each share (a) As of Common Stockthe ---------------------------------- Effective Time, $0.01 par value per share, by virtue of the Merger and without any action on the part of the holder of any shares of Company includingCommon Stock or any shares of capital stock of Merger Sub, with respect except as otherwise provided in this Section 2.03 and subject to Section 2.04(f), each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to cancelled in accordance with Section 1.6(b), will 2.02) shall be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that the number of shares of Common Stock common stock, par value $0.32 per share, of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender determined by dividing $31.00 by the Average Parent Share Price (as defined below) and rounding the result to the nearest one thousandth of a share (the certificate representing "Stock Consideration") or, in the event the holder thereof shall have ------------------- made the election provided for herein, such shares share of Company Common Stock shall be converted into the right to receive in cash from Parent, without interest, an amount equal to $31.00 (the manner provided in Section 1.7 "Cash Consideration") (or a combination of shares of ------------------ Parent Common Stock and cash determined in accordance with Section 2.03(b)) (the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9"Merger Consideration"). "Exchange Ratio" shall mean 0.1095; provided, that if however, that, in any event, if, between the -------------------- -------- ------- first day of the Valuation Period (as defined below) and the Effective Time, the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Stock Consideration shall be correspondingly adjusted to the extent appropriate to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The "Average Parent Share Price" means the average closing sale price of one the last sales prices per -------------------------- share of Parent Common Stock as reported on the New York Stock Exchange Exchange, Inc. (the "NYSE") ---- Composite Tape for the ten (10) 10 consecutive trading days ending on the trading day immediately preceding which is five days prior to the Closing Date (the "Average PriceValuation Period") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price). If any shares As of Company Common Stock outstanding immediately prior to ---------------- the Effective Time are unvested or are subject to a repurchase optionTime, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for all such shares of Company Common Stock will also shall no longer be unvested outstanding and subject shall automatically be cancelled and retired and shall cease to the same repurchase option, risk of forfeiture or other conditionexist, and the certificates each holder of a certificate representing any such shares of Parent Company Common Stock may accordingly be marked shall cease to have any rights with appropriate legends. The Company shall take all action that may be necessary respect thereto, except the right to ensure that, from and after receive the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementMerger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Unc Inc)
Conversion of Company Common Stock. Each (a) At the Effective Time, subject to Section 2.2(e) hereof, each share of the Class A Common Stock, $0.01 par value $.01 per share, of the Company including, with respect to (the "Class A Common Stock") and each such share of Company the Class B Common Stock, par value $.01 per share, of the associated Rights (as defined in that certain Rights Agreement Company (the "Company Rights Plan") dated as of April 21Class B Common Stock" and, 1995together with the Class A Common Stock, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as defined in Section 1.3(b) hereof) and other than shares of Company Common Stock owned directly or indirectly by Parent or the Company (except for shares held in managed accounts, trust accounts or otherwise in a fiduciary capacity that are beneficially owned by third parties)) shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into and exchangeable for .9085 shares (the "Exchange Ratio") of the common stock, par value $2.00 per share, of Parent (together with the number of Parent Rights (as defined in Section 4.2 hereof) associated therewith) ("Parent Common Stock"). All of the shares of Company Common Stock converted into Parent Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate (each a "Certificate") previously representing any such shares of Company Common Stock shall thereafter only represent the right to receive (i) the number of whole shares of Parent Common Stock and (ii) the cash in lieu of fractional shares of Parent Common Stock into which the shares of Company Common Stock represented by such Certificate have been converted pursuant to this Agreement. Certificates previously representing shares of Company Common Stock shall be exchanged for certificates representing whole shares of Parent Common Stock and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such Certificates in accordance with Section 2.2 hereof, without any interest thereon. If prior to the Effective Time, Parent should split or combine the Parent Common Stock, or pay a dividend or other than distribution in the Parent Common Stock, then the Exchange Ratio shall be appropriately adjusted to reflect such split, combination, dividend or distribution. At the Effective Time, all shares of Company Common Stock owned directly or indirectly by Parent or the Company (except for shares held in managed accounts, trust accounts or otherwise in a fiduciary capacity that are beneficially owned by third parties)) shall be cancelled and shall cease to exist and no stock of Parent or other consideration shall be delivered in exchange therefor.
(b) Notwithstanding anything in this Agreement to the contrary, any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock which are outstanding immediately prior to the Effective Time and which are unvested or are subject to a repurchase option, risk held by shareholders who shall not have voted such shares in favor of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement the Merger and who shall have filed with the Company, then Company a written objection to the shares Merger and a demand for appraisal of Parent Common Stock issued in exchange for such shares in the manner provided in Section 623 of Company Common Stock will also the BCL ("Dissenting Shares") shall not be unvested and subject converted into the right to receive, or be exchangeable for, the same repurchase optionconsideration provided for in Section 1.3(a) hereof, risk but, instead, the holders thereof shall be entitled to payment of forfeiture or other condition, and the certificates representing appraised value of such shares Dissenting Shares in accordance with the provisions of Parent Common Stock may accordingly be marked with appropriate legendsSection 623 of the BCL. The Company shall take all action that may be necessary (x) give Parent prompt written notice of the receipt of any notice from a shareholder of his intent to ensure thatdemand payment for his shares, from and after the Effective Time, Parent is entitled (y) not settle or offer to exercise settle any such repurchase option or other right set forth demands without the prior written consent of Parent and (z) not, without the prior written consent of Parent, waive any failure to timely deliver a written objection to the Merger and a demand for appraisal of such shares in any such restricted stock purchase agreement or other agreementaccordance with Section 623 of the BCL.
Appears in 1 contract
Sources: Merger Agreement (Barnett Banks Inc)
Conversion of Company Common Stock. Each (a) At the Effective Time, subject to Section 2.2(e) hereof, each share of Common Stockthe common stock, par value $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into held directly or indirectly by Buyer or the right to receive that number Company or any of shares of Common Stock of Parent equal to the Exchange Ratio their respective Subsidiaries (as defined below) (except for Trust Account Shares and DPC Shares, as such terms are defined in Section 1.4(b) hereof)) shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into and exchangeable for 1.18 shares (the "Parent Exchange Ratio") of the common stock, par value $5.00 per share, of Buyer ("Buyer Common Stock") upon surrender ). All of the shares of Company Common Stock converted into Buyer Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate (each a "Certificate") previously representing any such shares of Company Common Stock in shall thereafter only represent the manner provided in Section 1.7 right to receive (or in i) the case number of a lost, stolen or destroyed certificate, upon delivery whole shares of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Buyer Common Stock as reported on and (ii) the New York Stock Exchange (cash in lieu of fractional shares into which the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior represented by such Certificate have been converted pursuant to this Section 1.4(a) and Section 2.2(e) hereof. Certificates previously representing shares of Company Common Stock shall be exchanged for certificates representing whole shares of Buyer Common Stock and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such Certificates in accordance with Section 2.2 hereof, without any interest thereon. If, between the date of this Agreement and the Effective Time Time, the outstanding shares of Buyer Common Stock shall be changed into a different number or class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or a stock dividend thereon shall be declared with a record date within said period, the Exchange Ratio shall be adjusted accordingly.
(b) At the Effective Time, all shares of Company Common Stock that are unvested owned directly or indirectly by Buyer or the Company or any of their respective Subsidiaries (other than shares of Company Common Stock (x) held directly or indirectly in trust accounts, managed accounts and the like or otherwise held in a fiduciary capacity for the benefit of third parties (any such shares, and shares of Buyer Common Stock which are subject to a repurchase optionsimilarly held, risk of forfeiture whether held directly or other condition under any applicable restricted stock purchase agreement indirectly by Buyer or other agreement with the Company, then as the shares case may be, being referred to herein as "Trust Account Shares") and (y) held by Buyer or the Company or any of Parent Common Stock issued their respective Subsidiaries in exchange for respect of a debt previously contracted (any such shares of Company Common Stock, and shares of Buyer Common Stock will also which are similarly held, whether held directly or indirectly by Buyer or the Company, being referred to herein as "DPC Shares")) shall be unvested cancelled and subject shall cease to the same repurchase option, risk exist and no stock of forfeiture Buyer or other condition, and the certificates representing such consideration shall be delivered in exchange therefor. All shares of Parent Buyer Common Stock may accordingly be marked that are owned by the Company or any of its Subsidiaries (other than Trust Account Shares and DPC Shares) shall become authorized but unissued shares of Buyer Common Stock. As used in this Agreement, the word "Subsidiary" when used with appropriate legends. The Company shall take all action that may be necessary respect to ensure thatany party means any corporation, from and after the Effective Time, Parent is entitled to exercise any such repurchase option partnership or other right set forth in any organization, whether incorporated or unincorporated, which is consolidated with such restricted stock purchase agreement or other agreementparty for financial reporting purposes.
Appears in 1 contract
Sources: Merger Agreement (F&m Bancorp)
Conversion of Company Common Stock. Each share of Common StockAt the Effective Time, $0.01 par value per share, of Company including, with respect to each such share all shares of Company Common StockStock outstanding immediately before the Effective Time, other than shares described in Section 2.6(b) and other than Dissenting Shares, collectively, the associated Rights (as defined in that certain Rights Agreement "Excluded Shares", shall be converted, by virtue of the Merger, into such number of shares of Altrimega Common Stock (the "Company Rights PlanMerger Shares") dated equal to 84% of Altrimega's issued and outstanding capital stock on a fully diluted basis, subject to the following:
(i) the conversion or cancellation prior to the Closing of all outstanding shares of Preferred Stock and the extension of the Secured Convertible Notes due October 31, 2001, it being understood that the number of Merger Shares shall not be increased as a result of April 21any such conversion;
(ii) the cancellation by Altrimega immediately after the Closing of 14,020,000 shares of common stock pursuant to the terms of Section 8.9;
(iii) the allocation of the Merger Shares among the Company Shareholders, 1995excluding the holders of Dissenting Shares, shall be as amended, set forth on Exhibit B to be delivered to Altrimega at least one business day prior to the Closing; and
(iv) If between the Company date of this Agreement and American the Closing Date, Altrimega shall declare a stock split or declare a dividend on Altrimega Common Stock Transfer and Trust Company as Rights Agent) payable in Altrimega Common Stock (or set a record date with respect thereto), the "Company Common Stock") number of Merger Shares determined above shall be adjusted to reflect fully the appropriate effect of any such subdivision, combination or dividend. At the Effective Time, each share of Altrimega Merger Sub issued and outstanding immediately prior to the Effective TimeTime shall be converted into one share of common stock of the Surviving Corporation. Each Excluded Share shall, other than by virtue of the Merger and without any shares action on the part of Company Common Stock the holder thereof, cease to be canceled outstanding, shall be cancelled and retired without payment of any consideration therefor and shall cease to exist and each certificate of such shares shall thereafter represent only the right to the Merger Shares and any distribution or dividend pursuant to Section 1.6(b2.7(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common Stock(i) Subject to Sections 2.01(b) and 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), Dissenting Shares) will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (fSection 2.02(e)) into the right to receive that number a fraction of shares of Common Stock one fully paid and nonassessable share of Parent equal to Common Stock, the Exchange Ratio numerator of which is (as defined belowA) 1,826,829 (the "Parent Common StockPool") and the denominator of which is (B) the total number of issued and outstanding shares of Company Common Stock immediately prior to the Effective Time (such fraction being referred to in this Agreement as the "Common Stock Exchange Ratio") upon surrender of the certificate representing such shares share of Company Common Stock in the manner provided in Section 1.7 (or 2.02. Notwithstanding the foregoing, in the case event any shares of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" Series C Stock shall mean 0.1095; provided, that if the average closing sale price of one share of Parent convert into Company Common Stock as reported on after the New York Stock Exchange execution and delivery hereof, (I) the "NYSE") for Common Pool shall be increased by a number equal to the ten (10) consecutive trading days ending on following: the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any number of shares of Company Common Stock issued upon such conversion of Series C Stock, multiplied by a fraction, the numerator of which is (A) the Common Pool immediately prior to such conversion and the denominator of which is (B) the total number of issued and outstanding shares of Company Common Stock immediately prior to such conversion; and (II) the Preferred Pool shall be decreased by the same amount that the Common Pool is increased.
(ii) Subject to Sections 2.01(b) and 2.02(e), each share of Series C Stock issued and outstanding immediately prior to the Effective Time are unvested or are (other than Dissenting Shares) will be canceled and extinguished and automatically converted (subject to Section 2.02(e)) into the right to receive a repurchase optionfraction of one fully paid and nonassessable share of Parent Common Stock, risk the numerator of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with which is (A) 1,773,171 (the Company, then "Preferred Pool") and the denominator of which is (B) the total number of issued and outstanding shares of Series C Stock immediately prior to the Effective Time (such fraction being referred to in this Agreement as the "Series C Exchange Ratio") upon surrender of the certificate representing such share of Series C Stock in the manner provided in Section 2.02.
(iii) The shares of Parent Common Stock issued in exchange for issuable upon the conversion of shares of Company Common Stock and Series C Stock pursuant to this Section 2.01 are referred to collectively as the "Merger Consideration." As of the Effective Time, all shares of Company Common Stock and Series C Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock will also or Series C Stock shall cease to have any rights with respect thereto, except the right to receive Merger Consideration upon surrender of such certificate in accordance with Section 2.02, without interest.
(iv) The Common Stock Exchange Ratio and the Series C Exchange Ratio shall be unvested adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock, Company Common Stock or Series C Stock), reorganization, recapitalization, reclassification or other like change with respect to Parent Common Stock, Company Common Stock or Series C Stock occurring on or after the date hereof and subject prior to the same repurchase optionEffective Time.
(v) In the event that the actual amount of Capped Expenses (as such term is defined in Section 3.18(b)) exceed the amount of such Capped Expenses set forth on Schedule 3.18(b), risk then the total number of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly issuable as Merger Consideration shall be marked with appropriate legendsreduced by an amount equal to (A) the difference between the actual amount of the Capped Expenses and the amount of such Capped Expenses set forth on Schedule 3.18(b) divided by (B) $14.25 (such number of shares of Parent Common Stock being referred to as the "Adjustment Shares"). The Company shall take all action that may Common Pool will be necessary reduced by an amount equal to ensure thatthe number of Adjustment Shares multiplied by a fraction the numerator of which is the then Common Pool and the denominator of which is the sum of the then Common Pool and the Preferred Pool, from and after the Effective Time, Parent Preferred Pool will be reduced by an amount equal to the number of Adjustment Shares multiplied by a fraction the numerator of which is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementthe then Preferred Pool and the denominator of which is the sum of the then Common Pool and the Preferred Pool.
Appears in 1 contract
Conversion of Company Common Stock. Each At the Effective Time, each share of Common Stock, $0.01 par value per share, common stock (including any fractions thereof) of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") (including those shares of Company Common Stock resulting from the conversion of Company Preferred Stock as set forth in Section 1.5(a) hereof) outstanding immediately prior to the Effective Time, but excluding any Dissenting Shares and shares held by the Parent, the Merger Sub, the Company or any of their respective wholly-owned subsidiaries, will be canceled, extinguished and automatically converted into the right to receive (A) an amount in cash, without interest, equal to the amount obtained by dividing (x) the sum of (1) the Cash Consideration plus (2) the aggregate amount of the exercise price with respect to all Options (excluding any Out-of-the-Money Options) and Warrants (excluding any Out-of-the-Money Warrants) as of immediately prior to the Effective Time by (y) the Fully Diluted Shares Outstanding (the "Common Per-Share Cash Consideration"), and (B) an interest in the Escrow Consideration equal to the amount obtained by dividing (x) the Escrow Consideration, by (y) the total number of Fully Diluted Shares Outstanding (the "Per-Share Escrow Consideration", and together with the Common Per-Share Cash Consideration, the "Common Per-Share Merger Consideration"). For purposes of this Agreement, "Fully Diluted Shares Outstanding" shall mean the sum of (A) the number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, plus (B) the number of shares of Company Common Stock issuable upon conversion of the Company Preferred Stock (excluding the shares of Company Common Stock issuable upon conversion of the Company's Series E Preferred Stock) issued and outstanding immediately prior to the Effective Time, other than any plus (C) the number of shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted issuable upon exercise of all Options (subject to Sections 1.6(eexcluding any Out-of-the-Money Options) and Warrants (f)excluding any Out-of-the-Money Warrants) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject (including Warrants to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Preferred Stock on an as-converted to Company Common Stock issued in exchange for such shares basis). Each share of Company Common Stock will also be unvested and subject to Company Preferred Stock (collectively, the same repurchase option, risk of forfeiture or other condition, and "Company Stock") held in the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after Company's treasury at the Effective TimeTime will be cancelled and retired and all rights in respect thereof will cease to exist, Parent is entitled to exercise without any such repurchase option conversion thereof or other right set forth payment of any consideration in any such restricted stock purchase agreement or other agreementrespect thereof.
Appears in 1 contract
Sources: Merger Agreement (Healthways, Inc)
Conversion of Company Common Stock. Each (a) At the Effective Time, each issued and outstanding share of Common Stockcommon stock, $0.01 no par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") immediately prior to the Effective Time (other than shares of Company Common Stock held in the Company's treasury) shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into the right to receive and be exchangeable for (i) $385,000 (the "Cash Price") divided by the number of shares of Company Common Stock outstanding on a fully-diluted basis (the "Cash Per Share Price"); (ii) the Conversion Number (as defined below) of shares of common stock, par value $0.001 per share, of Parent (the "Parent Common Stock") (such consideration to be referred to as the "Stock Per Share Price" and, together with the Cash Per Share Price, the "Per Share Price"); a portion of which shall be subject to forfeiture or adjustment as provided in Section 2.02 and Section 2.03 and Article IX hereof.
(b) Each share of Company Common Stock converted into the Parent Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate (each a "Certificate," and collectively, the "Certificates") previously representing any such shares of Company Common Stock shall thereafter represent the right to receive (i) cash equal to the Cash Per Share Price multiplied by the number of shares of Company Common Stock represented by such certificate; and (ii) shares of Parent Common Stock equal to the Stock Per Share Price multiplied by the number of shares of Company Common Stock represented by such Certificate, plus any cash for fractional shares upon conversion (in the aggregate, the "Merger Consideration"), a portion of which shall be subject to forfeiture or adjustment as provided in Section 2.02 and Section 2.03 and subject to Article IX hereof.
(c) For purposes of this Agreement, the Conversion Number shall be the quotient of:
(i) $2,365,000 less the product of $145,000 multiplied by the difference of (i) fifteen (15) and (ii) the number of employees listed on EXHIBIT E hereto on the Closing Date (the "Stock Price") divided by the number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted divided by
(subject to Sections 1.6(eii) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") Nasdaq SmallCap Market for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date public announcement of the Merger (the "Average Closing Price") is less than $24.00). For example, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Closing Price is higher than $30.0012 and the number of employees listed on Exhibit E on the Closing Date is 13, Exchange Ratio then the Conversion Number shall mean be 1,729.166 [which equals (($2,365,000 - ($145,000 x (15-13)))/100/12)].
(d) If, between the quotient determined by dividing 3.285 by the Average Price. If any shares date of Company Common Stock outstanding immediately prior to this Agreement and the Effective Time are unvested or are subject as to a repurchase optionthe Per Share Price, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the outstanding shares of Parent Common Stock issued in shall be changed into a different number of shares by reason of any reclassification, recapitalization or exchange for such of shares of Company Common or if a stock split, combination, stock dividend, stock rights or extraordinary dividend thereon shall be declared with a record date within said period, the Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, Per Share Price and the certificates representing such Average Closing Price shall be correspondingly adjusted, as applicable. No fractional shares of Parent Common Stock may accordingly will be marked with appropriate legends. The Company shall take all action that may be necessary to ensure thatissued and, from and after the Effective Timein lieu thereof, Parent is any shareholder entitled to exercise any receive a fractional share of Parent Common Stock shall be paid in cash an amount equal to the value of such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementfractional shares, which shall be calculated as the fraction of the share of Parent Common Stock that would otherwise be issued multiplied by the Average Closing Price.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Conversion of Company Common Stock. (i) Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.1(b)) shall, by virtue of the Merger and without any further action on the part of the Constituent Entities or the holders of any membership interest of Sub or the holders of beneficial interest of the Company, be converted into the right to receive that number of shares of Common Stock of Parent equal $12.50 in cash following the Merger, subject to the Exchange Ratio adjustment as provided below (as defined belowadjusted, the “Merger Consideration”). If (x) from and after the date hereof, the Company declares or pays a dividend or distribution to its shareholders (including any 338 Dividend or REIT Dividend), but excluding those dividends and distributions permitted by clause (ii) of Section 6.8 (all such dividends or distributions, “Excess Distributions”), the "Parent Common Stock") upon surrender of the certificate representing such shares Merger Consideration per share of Company Common Stock in shall be reduced by the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean amount equal to the quotient determined obtained by dividing 2.628 the aggregate amount of Excess Distributions by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any number of shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase optionTime; and (y) the Closing shall not have occurred by May 31, risk 2004, the Merger Consideration per share of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Company Common Stock issued in exchange for shall be increased by an amount equal to the product of (a) $.72 divided by 365, multiplied by (b) the number of days that have elapsed from and including June 1, 2004 through but not including the Closing Date.
(ii) As of the Effective Time all such shares of Company Common Stock will also shall no longer be unvested outstanding and subject shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate that immediately prior to the same repurchase option, risk of forfeiture or other condition, and the certificates representing Effective Time evidenced any such shares of Parent Company Common Stock may accordingly be marked (a “Certificate”) shall cease to have any rights with appropriate legendsrespect thereto, except the right to receive the Merger Consideration upon surrender of such Certificate in accordance with Section 2.2. The right of any holder of any share of Company Common Stock to receive the Merger Consideration shall take all action be subject to and reduced by the amount of any withholding that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementrequired under applicable tax law.
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to ----------------------------------- each such issued and outstanding share of Company Common Stock, the associated Rights Stock (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive that number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Merger Consideration"). The "Exchange Ratio" means the quotient obtained by dividing $61.00 by the Average Closing Price and rounding to the nearest 1/10,000; provided, that, except as set forth in -------- the following proviso, the Exchange Ratio shall not be less than 0.5823 or greater than 0.7117; and provided, further, that in the event that the -------- ------- Average Closing Price (i) is less than $73.07, then the Exchange Ratio shall mean the quotient obtained by dividing $52.00 by the Average Closing Price and rounding to the nearest 1/10,000 or (ii) is greater than $118.81, then the Exchange Ratio shall mean the quotient obtained by dividing $69.18 by the Average Closing Price and rounding to the nearest 1/10,000. The "Average Closing Price" shall be an amount equal to the average per share closing price of Parent Common Stock") upon surrender , as reported on the NYSE Composite Transaction Tape for the 20 trading days ending with the second trading day immediately preceding the Shareholders Meeting. As of the certificate representing Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration and subject to the same repurchase option, risk any cash in lieu of forfeiture or other condition, and the certificates representing such fractional shares of Parent Common Stock may accordingly to be marked issued or paid in consideration therefor upon surrender of such certificate in accordance with appropriate legendsSection 2.02, without interest. The Company shall take all action that may be necessary to ensure thatNotwithstanding the foregoing, from if between the date of this Agreement and after the Effective TimeTime the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, Parent is entitled by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the Exchange Ratio shall be appropriately adjusted to exercise any reflect such repurchase option stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange or other right set forth in any such restricted stock purchase agreement or other agreementsimilar transaction.
Appears in 1 contract
Sources: Merger Agreement (Centocor Inc)
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such issued and outstanding share of Company Common Stock, the associated Rights Stock (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to which constitute Canceled Shares) shall be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of fully paid, non-assessable shares of Common Stock of Parent equal the Parent's common stock, par value $3.33 1/3 per share, together with the rights issued pursuant to the Exchange Ratio (as defined below) a Shareholder Protection Rights Agreement, dated December 18, 1990, attached thereto (the "Parent Common Stock") upon surrender ), equal to the result of dividing $34.00 by the Market Price (such quotient, rounded down to four decimal places, the "Exchange Ratio"). The "Market Price" means the average of the per share closing sales price of Parent Stock, rounded to four decimal places, as reported under "NYSE Composite Reports" in THE WALL STREET JOURNAL for each of the five trading days in the period ending on the trading day prior to the Effective Time. In the event of any dividend or distribution of or with respect to the Parent Stock (other than quarterly dividends paid or declared in the ordinary course of business and consistent with past practice), subdivision, reclassification, recapitalization, split or reverse stock split, exchange of shares or the like affecting the number of shares of Parent Stock outstanding or the price per share of the Parent Stock between the date on which the Market Price calculation commences and the Effective Time, the number of shares of Parent Stock to be issued in the Merger shall be appropriately adjusted so that each holder of Company Common Stock shall receive in the Merger the number of shares of Parent Stock such holder would have been entitled to receive if the Effective Time had been immediately prior to such event. All of the shares of Company Common Stock to be converted into Parent Stock pursuant to this Section 2.1(b) shall cease to be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock in shall cease to have any rights with respect thereto, except the manner provided in Section 1.7 (or in right to receive the case number of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued issuable therefor upon the surrender of such certificate in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase optionaccordance with Section 2.2 hereof, risk of forfeiture or other conditionwithout interest, and the certificates representing such cash in lieu of fractional shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementas contemplated by Section 2.2(e).
Appears in 1 contract
Conversion of Company Common Stock. Each (a) At the Effective Time, subject to Section 2.2(e) hereof, each share of Common Stockthe common stock, par value $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding out standing immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into held directly or indirectly by Buyer or the right to receive that number Company or any of shares of Common Stock of Parent equal to the Exchange Ratio their respective Subsidiaries (as defined below) (except for Trust Account Shares and DPC Shares, as such terms are defined in Section 1.4(b) hereof)) shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into and exchangeable for 1.18 shares (the "Parent Exchange Ratio") of the common stock, par value $5.00 per share, of Buyer ("Buyer Common Stock") upon surrender ). All of the shares of Company Common Stock converted into Buyer Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate (each a "Certificate") previously representing any such shares of Company Common Stock in shall thereafter only represent the manner provided in Section 1.7 right to receive (or in i) the case number of a lost, stolen or destroyed certificate, upon delivery whole shares of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Buyer Common Stock as reported on and (ii) the New York Stock Exchange (cash in lieu of fractional shares into which the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior represented by such Certificate have been converted pursuant to this Section 1.4(a) and Section 2.2(e) hereof. Certificates previously representing shares of Company Common Stock shall be exchanged for certificates representing whole shares of Buyer Common Stock and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such Certificates in accordance with Section 2.2 hereof, with out any interest thereon. If, between the date of this Agreement and the Effective Time Time, the outstanding shares of Buyer Common Stock shall be changed into a different number or class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or a stock dividend thereon shall be declared with a record date within said period, the Exchange Ratio shall be adjusted accordingly.
(b) At the Effective Time, all shares of Company Common Stock that are unvested owned directly or indirectly by Buyer or the Company or any of their respective Subsidiaries (other than shares of Company Common Stock (x) held directly or indirectly in trust accounts, managed accounts and the like or otherwise held in a fiduciary capacity for the benefit of third parties (any such shares, and shares of Buyer Common Stock which are subject to a repurchase optionsimilarly held, risk of forfeiture whether held directly or other condition under any applicable restricted stock purchase agreement indirectly by Buyer or other agreement with the Company, then as the shares case may be, being referred to herein as "Trust Account Shares") and (y) held by Buyer or the Company or any of Parent Common Stock issued their respective Subsidiaries in exchange for respect of a debt previously contracted (any such shares of Company Common Stock, and shares of Buyer Common Stock will also which are similarly held, whether held directly or indirectly by Buyer or the Company, being referred to herein as "DPC Shares") shall be unvested cancelled and subject shall cease to the same repurchase option, risk exist and no stock of forfeiture Buyer or other condition, and the certificates representing such consideration shall be delivered in exchange therefor. All shares of Parent Buyer Common Stock may accordingly be marked that are owned by the Company or any of its Subsidiaries (other than Trust Account Shares and DPC Shares) shall become authorized but unissued shares of Buyer Common Stock. As used in this Agreement, the word "Subsidiary" when used with appropriate legends. The Company shall take all action that may be necessary respect to ensure thatany party means any corporation, from and after the Effective Time, Parent is entitled to exercise any such repurchase option partnership or other right set forth in any organization, whether incorporated or unincorporated, which is consolidated with such restricted stock purchase agreement or other agreementparty for financial reporting purposes.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to Dissenting Shares or Cancelled Shares) shall be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number from Merger Sub a portion of shares of a validly issued, fully paid and non-assessable Parent Common Stock of Parent Share (the “Exchange Ratio”) equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.10950.078; provided, that however, if the average closing sale price of one share of Average Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") Share Price is less than $24.003.22, the Exchange Ratio shall mean be equal to a decimal (rounded to the quotient nearest one-one thousandth place) determined by dividing 2.628 $0.25 by the Average Parent Share Price; provided, further, that however, if the Average Parent Share Price is higher greater than $30.003.86, the Exchange Ratio shall mean be equal to a decimal (rounded to the quotient nearest one-one thousandth place) determined by dividing 3.285 $0.30 by the Average Parent Share Price. If any shares Notwithstanding the preceding sentence, if the aggregate number of Parent Common Shares to be issued pursuant to this Section 2.1(a) plus the number of Parent Common Shares underlying each Company Warrant assumed by Parent pursuant to Section 2.3(c) would exceed 19.9% of the Parent Common Stock Shares outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with (the Company“Maximum Share Amount”), then appropriate adjustments shall be made to the Merger Consideration (as defined below) to be issued pursuant thereto such that (1) the aggregate number of Parent Common Shares to be included in the Merger Consideration is reduced to the extent required such that the aggregate number of Parent Common Shares to be so issued does not exceed the Maximum Share Amount and (2) an aggregate amount of cash consideration will be included in the Merger Consideration, such aggregate amount equal to the Average Parent Share Price multiplied by the number of Parent Common Shares so reduced (the “Cash Consideration”). Any reduction to the number of Parent Common Shares to be issued in the Merger, and any Cash Consideration to be included in the Merger Consideration, in each case in accordance with this Article II, shall be applied pro rata to the shares of Company Common Stock (including shares of Company Common Stock issuable in respect of Company Warrants) outstanding as of immediately prior to the Effective Time. As of the Effective Time, each share of Company Common Stock converted into the right to receive from Merger Sub the Parent Common Shares to be issued pursuant to this Article II plus, if applicable, the Cash Consideration (the “Merger Consideration”) shall no longer be outstanding, shall automatically be cancelled and shall cease to exist, and uncertificated shares of Company Common Stock issued in exchange for represented by book-entry form (“Book-Entry Shares”) and each certificate that, immediately prior to the Effective Time, represented any such shares of Company Common Stock will also be unvested and subject (each, a “Certificate”) shall thereafter represent only the right to receive, pursuant to the same repurchase optionterms of this Agreement, risk the Merger Consideration into which the shares of forfeiture Company Common Stock represented by such Book-Entry Share or Certificate have been converted pursuant to this Section 2.1, as well as any cash in lieu of fractional Parent Common Shares to be issued or paid in consideration therefor and any dividends or other condition, and the certificates representing such shares distributions to which holders of Parent Company Common Stock may accordingly be marked become entitled in accordance with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementSection 2.2(e).
Appears in 1 contract
Conversion of Company Common Stock. Each (a) At the Effective Time, subject to Section 2.2(e) hereof, each share of Common Stockthe common stock, $0.01 par value $5.00 per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into held directly or indirectly by Buyer or the right to receive that number Company or any of shares of Common Stock of Parent equal to the Exchange Ratio their respective Subsidiaries (as defined below) (except for Trust Account Shares and DPC Shares, as such terms are defined in Section 1.4(b) hereof)) shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into and exchangeable for a number of shares of the common stock, par value $5.00 per share, of Buyer ("Parent Buyer Common Stock") upon surrender equal to the quotient obtained by dividing the Share Number (as hereinafter defined) by the number of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (issued and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject (such quotient being hereinafter referred to a repurchase optionas the "Exchange Ratio"). The "Share Number" shall be 2,219,753, risk provided, however, that (i) if the Average Closing Price (as hereinafter defined) is less than $34.425 then the Share Number shall be increased to the extent necessary so that the product of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the CompanyShare Number and the Average Closing Price shall equal $76,415,000, provided, that in no event shall the Share Number be greater than 2,281,753, and (ii) if the Average Closing Price is greater than $46.575, then the Share Number shall be reduced to the extent necessary so that the product of the Share Number and the Average Closing Price shall equal $103,384,996, provided, that in no event shall the Share Number be less than 2,157,753. As used herein, "Average Closing Price" shall mean the average of the last reported sale prices per share of Buyer Common Stock as reported on The Nasdaq Market's National Market ("Nasdaq/NMS") (as reported in The Wall Street Journal or, if not reported therein, in another mutually agreed upon authoritative source) for the 15 consecutive trading days ending on the fifth business day prior to the Closing Date (as hereinafter defined). All of the shares of Parent Company Common Stock issued in exchange for converted into Buyer Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate (each a "Certificate") previously representing any such shares of Company Common Stock will also shall thereafter only represent the right to receive (i) the number of whole shares of Buyer Common Stock and (ii) the cash in lieu of fractional shares into which the shares of Company Common Stock represented by such Certificate have been converted pursuant to this Section 1.4(a) and Section 2.2(e) hereof. Certificates previously representing shares of Company Common Stock shall be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the exchanged for certificates representing such whole shares of Parent Buyer Common Stock may accordingly be marked and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such Certificates in accordance with appropriate legendsSection 2.2 hereof, without any interest thereon. The Company shall take all action that may be necessary to ensure thatIf, from between the date of this Agreement and after the Effective Time, Parent is entitled to exercise the outstanding shares of Buyer Common Stock shall be changed into a different number or class of shares by reason of any such repurchase option reclassification, recapitalization, split-up, combination, exchange of shares or other right set forth in any such restricted readjustment, or a stock purchase agreement or other agreementdividend thereon shall be declared with a record date within said period, the Exchange Ratio shall be adjusted accordingly.
Appears in 1 contract
Sources: Merger Agreement (F&m Bancorp)
Conversion of Company Common Stock. Each share At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of the Company Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common StockStock (all shares of Company Common Stock being collectively, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"“Shares”) issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock Shares to be canceled cancelled or converted pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.04(b)) shall be converted automatically into the right to receive that the number of fully paid and non-assessable shares of Parent Common Stock of Parent (the “Merger Consideration”) equal to the Exchange Ratio (as defined below) (quotient determined by dividing the "Per Share Consideration by the Average Parent Common Stock") Stock Price and rounding the result to the nearest one-thousandth of a share, payable upon surrender of the certificate representing such shares of Company Common Stock a Certificate in the manner provided in Section 1.7 3.01; provided, however, that Parent may make an irrevocable election, in its sole and absolute discretion, not later than three Business Days prior to the Effective Time (and no later than one Business Day following the satisfaction or written waiver (where permissible) of the conditions set forth in Article VIII (other than those conditions that by their terms are to be satisfied at the Closing)), upon written notice to the Company, to instead pay an amount in cash equal to the Per Share Consideration for each issued and outstanding share of Company Common Stock, in which case each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any Shares to be cancelled or converted pursuant to Section 2.04(b) and any Dissenting Shares) shall be converted automatically into the right to receive the amount of cash equal to the Per Share Consideration (in which case, such amount of cash shall be the “Merger Consideration”), payable upon surrender of a Certificate in the manner provided in Section 3.01 (the “Parent Cash Election”); provided, further, however, that each holder of a certificate or certificates which immediately prior to the Effective Time represented such Shares (“Certificates”) or book-entry shares which immediately prior to the Effective Time represented such Shares (“Book-Entry Shares”) shall thereafter cease to have any rights with respect thereto except (i) the right to receive the Merger Consideration, any dividends or other distributions pursuant to Section 3.01(c) and cash in lieu of any fractional shares payable pursuant to Section 3.01(e), in each case to be issued or paid, without interest, in consideration therefor upon surrender of such Certificate or transfer of the Book-Entry Shares in accordance with Section 3.01(b) (or in the case of a lost, stolen or destroyed certificateCertificate, upon delivery of an affidavit Section 3.01(k) or (and bond, if requiredii) in the manner as provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementLaw.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (World Heart Corp)
Conversion of Company Common Stock. (i) Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.1(b)) shall, by virtue of the Merger and without any further action on the part of the Constituent Entities or the holders of any membership interest of Sub or the holders of beneficial interest of the Company, be converted into the right to receive that number of shares of Common Stock of Parent equal $12.50 in cash following the Merger, subject to the Exchange Ratio adjustment as provided below (as defined below) (adjusted, the "Parent Common StockMerger Consideration"). If (x) upon surrender from and after the date hereof, the Company declares or pays a dividend or distribution to its shareholders (including any 338 Dividend or REIT Dividend), but excluding those dividends and distributions permitted by clause (ii) of Section 6.8 (all such dividends or distributions, "Excess Distributions"), the certificate representing such shares Merger Consideration per share of Company Common Stock in shall be reduced by the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean amount equal to the quotient determined obtained by dividing 2.628 the aggregate amount of Excess Distributions by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any number of shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase optionTime; and (y) the Closing shall not have occurred by May 31, risk 2004, the Merger Consideration per share of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Company Common Stock issued in exchange for shall be increased by an amount equal to the product of (a) $.72 divided by 365, multiplied by (b) the number of days that have elapsed from and including June 1, 2004 through but not including the Closing Date.
(ii) As of the Effective Time all such shares of Company Common Stock will also shall no longer be unvested outstanding and subject shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate that immediately prior to the same repurchase option, risk of forfeiture or other condition, and the certificates representing Effective Time evidenced any such shares of Parent Company Common Stock may accordingly be marked (a "Certificate") shall cease to have any rights with appropriate legendsrespect thereto, except the right to receive the Merger Consideration upon surrender of such Certificate in accordance with Section 2.2. The right of any holder of any share of Company Common Stock to receive the Merger Consideration shall take all action be subject to and reduced by the amount of any withholding that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementrequired under applicable tax law.
Appears in 1 contract
Sources: Merger Agreement (Eldertrust)
Conversion of Company Common Stock. Each (a) At the Effective Time, by virtue of the Merger, automatically and without any action on the part of the holder thereof, each share of Common Stockthe common stock, $0.01 par value $5.00 per share, of the Company including, with respect to each such share of (“Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"”) issued and outstanding immediately prior to at the Effective Time, other than any (i) Dissenting Shares and (ii) shares of Company Common Stock to be canceled pursuant to Section 1.6(bowned or held, other than in a bona fide fiduciary or agency capacity or in satisfaction of a debt previously contracted, by Parent, Parent Bank the Company or a Subsidiary of either (collectively “Excluded Shares”), will shall become and be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number 1.05000 shares (the “Exchange Ratio”) of shares of Common Stock the common stock, par value $1.00 per share, of Parent equal to the Exchange Ratio (as defined below) (the "“Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock ”). The consideration to be issued in the manner provided in Section 1.7 Merger is sometimes referred to herein as the “Merger Consideration.”
(or in the case b) Notwithstanding any other provision of this Agreement, no fraction of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported and no certificates or scrip therefor will be issued in the Merger; instead, Parent shall pay to each holder of Company Common Stock who would otherwise be entitled to a fraction of a share of Parent Common Stock an amount in cash, rounded to the nearest cent, determined by multiplying such fraction (rounded to the nearest thousandth) by the Parent Average Price. “Parent Average Price” means the average closing sales price per share, rounded to the nearest hundredth of a cent, of Parent Common Stock on the New York Stock Exchange NASDAQ Global Select Market (the "NYSE"“Nasdaq”) for the ten five (105) consecutive trading days ending on (and including) the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00Date, Exchange Ratio shall mean the quotient determined as reported by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementNasdaq.
Appears in 1 contract
Conversion of Company Common Stock. Each share (a) As of Common Stockthe Effective Time, $0.01 par value per share, by virtue of the Merger and without any action on the part of the holder of any shares of Company includingCommon Stock or any shares of capital stock of Merger Sub, with respect except as otherwise provided in this Section 2.03 and subject to Sections 2.04 and 2.05(f), each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares to be cancelled in accordance with Section 2.02) shall be converted into, at the election of the holder thereof, one of the following (or a combination of shares of Company Parent Common Stock to be canceled pursuant to Section 1.6(band cash determined in accordance with Sections 2.03(d), will be canceled and extinguished and automatically converted (subject to Sections 1.6(ee), (f) and (fg)) into (the "Merger Consideration"):
(i) the right to receive that the number of shares of Parent Common Stock of determined by dividing $55.00 by the Average Parent equal Share Price and rounding the result to the Exchange Ratio (as defined below) nearest one thousandth of a share (the "Stock Consideration"); provided, however, that in no event shall the Stock Consideration be less than 1.275 or more than 1.612 shares of Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that further, that, in any event, if between the date of this Agreement and the Effective Time the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Stock Consideration shall be correspondingly adjusted to the extent appropriate to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The " Average Parent Share Price" means the average closing sale price of one the last sales prices per share of Parent Common Stock as reported on the New York Stock Exchange Exchange, Inc. (the "NYSEStock Exchange") Composite Tape for the ten (10) 20 consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") which is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately five days prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.Closing Date; or
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value $.01 per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are (such shares, collectively, “Company Common Stock,” and each, a “Share”), together with the related Right (as defined in the Rights Plan) issued pursuant to the Rights Plan,, other than (i) Shares to be cancelled or recapitalized pursuant to Section 2.1(b), (ii) Dissenting Shares (as hereinafter defined), and (iii) Shares underlying or comprising unexercised, unvested or are unsettled Company Equity Awards (as hereinafter defined) shall be converted automatically into and shall thereafter represent the right to receive $83.00 plus the Additional Per Share Consideration (as hereinafter defined), if any, in cash without interest (the “Merger Consideration”), subject to a repurchase optionany required Tax withholding as provided in Section 2.2(b)(iii). The “Additional Per Share Consideration” shall mean: (x) if the Effective Time shall occur on or after March 1, risk 2015 (the “Additional Consideration Date”), an amount per share equal to fifty-five cents ($0.55) multiplied by the number of forfeiture months from the month in which the Additional Consideration Date occurs to (and including) the month in which Closing occurs; or other condition under any applicable restricted stock purchase agreement (y) if the Effective Time shall occur on or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject prior to the same repurchase optionAdditional Consideration Date, risk zero dollars and zero cents ($0). By way of forfeiture example, if the Closing were to occur on March 1, 2015 (or other conditionat any time after such date but on or prior to March 31, 2015), the Additional Per Share Consideration shall be Fifty-Five Cents ($0.55) and the Merger Consideration shall be $83.55, and if the Closing were to occur on April 1, 2015 (or at any time after such date but on or prior to April 30, 2015), the Additional Per Share Consideration shall be One Dollar and Ten Cents ($1.10) and the Merger Consideration shall be $84.10. All Shares that have been converted into the right to receive the Merger Consideration as provided in this Section 2.1 shall be automatically cancelled and shall cease to exist, and the holders of certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary which immediately prior to ensure that, from and after the Effective Time, Parent is entitled Time represented such Shares shall cease to exercise have any rights with respect to such repurchase option or Shares other than the right set forth in any such restricted stock purchase agreement or other agreementto receive the Merger Consideration.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.2(e), $0.01 par value per share, of Company including, with respect to each such issued and outstanding share of Company Common Stock, the associated Rights Stock (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled in accordance with Section 2.1(b) and Dissenting Shares that are owned by Dissenting Stockholders that have properly exercised appraisal rights pursuant to Section 1.6(b), 262 of the DGCL) will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that (i) a number of fully paid, non-assessable shares of Common Stock common stock, no par value, of Parent (“Parent Common Stock”) equal to the Exchange Ratio (the “Stock Consideration”), and (ii) $10.725 in cash without interest from Parent (the “Cash Consideration” and, together with the Stock Consideration, the “Merger Consideration”). The “Exchange Ratio” shall be equal to the Stock Value divided by the Closing VWAP; provided, however, that the Exchange Ratio shall be less than the Maximum Exchange Ratio. If the Exchange Ratio would have been equal to or greater than the Maximum Exchange Ratio but for the proviso in the previous sentence, then the Company may, in its sole discretion, require that, in lieu of the Stock Consideration, Parent make a cash payment in an amount equal to the Stock Value (as defined calculated below) in addition to the Cash Consideration (the "Parent Common Stock") upon surrender of “Cash Election”), and the certificate representing such shares of term Merger Consideration shall include this cash payment as opposed to the Stock Consideration. All Company Common Stock in converted into the manner provided in right to receive the Merger Consideration pursuant to this Section 1.7 (or in the case 2.1(c) shall cease to be outstanding and shall be canceled and retired and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, certificate that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject represented such Company Common Stock (“Company Certificate”) shall thereafter cease to a repurchase optionhave any rights with respect to such Company Common Stock, risk of forfeiture except the right to receive the Merger Consideration to be issued in consideration therefor and any dividends or other condition under any applicable restricted stock purchase agreement distributions to which holders of Company Common Stock become entitled in accordance with this Article II upon the surrender of such Company Certificate. “Stock Value” means the sum of (x) $3.575 plus (y) 0.25 multiplied by the Post-Signing VWAP minus (z) 0.25 multiplied by $13.4329; provided, however, that the Stock Value shall not be less than $3.475 or other agreement with greater than $4.275. “Closing VWAP” means the Company, then the shares volume weighted average price of Parent Common Stock issued for the 20 consecutive Trading Days in exchange for such shares of Company Common Stock will also be unvested and subject the period ending on the Trading Day immediately prior to the same repurchase optionClosing Date, risk of forfeiture or other conditionas reported by Bloomberg, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.Inc. “Maximum Exchange
Appears in 1 contract
Conversion of Company Common Stock. (A) Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such issued and outstanding share of Company Common StockStock held of record by an Accredited Investor (other than (I) shares of Company Common Stock to be cancelled in accordance with Section 3.1(a)(ii) and (II) any Dissenting Shares (such shares identified in clauses (I) and (II), the associated Rights “Specified Shares”)), including any Company Restricted Stock held by an Accredited Investor, shall be converted into and shall thereafter represent the right of the holder thereof to receive the following: (as defined in that certain Rights Agreement 1) a number of shares of Parent Common Stock equal to the Per Share Portion multiplied by the Merger Stock Consideration (the "Company Rights Plan"“Accredited Investor Closing Stock Consideration”), (2) dated as of April 21, 1995, as amended, between an amount in cash equal to the Company and American Stock Transfer and Trust Company as Rights AgentPer Share Portion multiplied by the Estimated Merger Cash Consideration (the “Accredited Investor Closing Cash Consideration”) (clauses (1) and (2) collectively, the "“Accredited Investor Company Common Stock"Stock Closing Consideration”), (3) an amount in cash equal to the Fully Diluted Per Share Portion multiplied by the Additional Merger Consideration (if any) payable pursuant to Section 3.6(f)(iv)(B), and (4) an amount in cash equal to the Fully Diluted Per Share Portion multiplied by the Equityholders’ Representative Account Distribution Amount (if any) payable pursuant to Section 3.13(b), in each case, without interest (clauses (1) – (4) collectively, the “Accredited Investor Company Common Stock Merger Consideration”). At the Effective Time, all shares of Company Common Stock issued and outstanding immediately prior to the Effective TimeTime shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, other than and each Company Stockholder shall cease to have any shares of rights with respect to such Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into except the right to receive that number of shares of Common Stock of Parent equal (except with respect to the Exchange Ratio (as defined belowSpecified Shares) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock Merger Consideration, in each case without interest. For the manner provided avoidance of doubt, in Section 1.7 (or in the case no event and notwithstanding any other provision of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" this Agreement shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less be obligated to issue more than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the 8,655,832.914502 shares of Parent Common Stock in the aggregate pursuant to this Agreement, except in accordance with Section 3.2(f) (for the avoidance of doubt, the Non-Accredited Investor Closing Stock Consideration and the cash amount paid pursuant to Section 3.1(b)(ii)(B)(II) shall not be deemed issuances of Parent Common Stock).
(B) Each issued in exchange for such shares and outstanding share of Company Common Stock will also held of record by a Non-Accredited Investor (other than the Specified Shares), including any Company Restricted Stock held by a Non-Accredited Investor, shall be unvested converted into and subject shall thereafter represent the right of the holder thereof to receive an amount in cash equal to the same repurchase optionfollowing: (1) the product of (i) the Per Share Portion, risk of forfeiture or other conditionmultiplied by (ii) the Merger Stock Consideration, and multiplied by (iii) the certificates representing such shares of Parent Common Stock may accordingly be marked Closing Price (the “Non-Accredited Investor Closing Stock Consideration” and together with appropriate legends. The the Accredited Investor Closing Stock Consideration, the “Closing Stock Consideration”), (2) an amount in cash equal to the Per Share Portion multiplied by the Estimated Merger Cash Consideration (the “Non-Accredited Investor Closing Cash Consideration” and together with the Accredited Investor Closing Cash Consideration, the “Closing Cash Consideration”) (clauses (1) and (2) collectively, the “Non-Accredited Investor Company shall take all action that may be necessary Common Stock Closing Consideration” and together with the Accredited Investor Company Common Stock Closing Consideration, the “Company Common Stock Closing Consideration”), (3) an amount in cash equal to ensure thatthe Fully Diluted Per Share Portion multiplied by the Additional Merger Consideration (if any) payable pursuant to Section 3.6(f)(iv)(B), from and after (4) an amount of cash equal to the Effective TimeFully Diluted Per Share Portion multiplied by the Equityholders’ Representative Account Distribution Amount (if any) payable pursuant to Section 3.13(b), Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementeach case, without interest (clauses (1) – (4) collectively, the “Non-Accredited Investor Company Common Stock Merger Consideration” and together with the Accredited Investor Company Common Stock Merger Consideration, the “Company Common Stock Merger Consideration”).
Appears in 1 contract
Conversion of Company Common Stock. (i) Each share stockholder of Common Stock, $0.01 par value per share, of the Company including, with respect to each such share shall have his or her shares of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any Company Common Stock to be cancelled in accordance with Section 3.01(b) hereof) converted into the right to receive such number of fully paid and nonassessable shares of Purchaser Common Stock as equals the product of the number of shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into held by such stockholder at the right to receive that number of shares of Common Stock of Parent equal to Effective Time times the Exchange Ratio (as defined below) ratio (the "Parent Stock Exchange Ratio"), calculated in accordance with Section 3.01(a)(ii) hereof (the "Per Share Merger Consideration"); provided, however, no fractional shares of Purchaser Common Stock") upon surrender Stock shall be issued. Each of the shares of Company Common Stock converted in accordance with this paragraph shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock in shall cease to have any rights with respect thereto, except the manner provided in Section 1.7 (or in right to receive the case of a lost, stolen or destroyed certificatePer Share Merger Consideration, upon delivery the surrender of an affidavit such certificate in accordance with Section 3.02 hereof.
(and bond, if requiredii) in The Stock Exchange Ratio shall equal the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that quotient obtained by dividing the Per Share Value (x) by $64.42 or (y) if the average closing sale price of one share of Parent Common Closing Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is Price shall be less than $24.0042.50, by the price which would produce a Stock Exchange Ratio causing the number of shares of Purchaser Common Stock issued in connection with the Merger (including shares of Purchaser Common Stock exchanged for Promissory Notes pursuant to Section 3.07 and such shares issuable pursuant to the Assumed Options (assuming full vesting thereof)) to increase by 12% over the number of shares which would have been so issued if the Stock Value were $64.42 ((x) or (y), as applicable, the "Stock Value"). The "Per Share Value" shall mean equal the quotient determined obtained by dividing 2.628 (i) $64,000,000 less the amount of the Company Indebtedness less the amount of the Interim Indebtedness by (ii) the Average Price; provided, further, that if sum of (A) the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares number of Fully Diluted Company Common Stock Shares outstanding immediately prior to the Effective Time are unvested or are subject and (B) that number (the "CA Allocation") which is 10% of the sum of the Fully Diluted Company Shares plus the CA Allocation. As of the date hereof, the Fully Diluted Company Shares is 10,875,610 and the CA Allocation is 1,208,401. Schedule 3.01(a) sets forth a computation schedule used by the parties to a repurchase option, risk illustrate the number of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement shares of Purchaser Common Stock which would be issued in connection with the Company, then Merger based on the shares capitalization of Parent Common Stock issued in exchange for such shares the Company as of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementdate hereof.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive (i) that number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent (the "Stock Portion") equal to the Exchange Ratio quotient determined by dividing $38.00 by the Parent Average Closing Stock Price (as defined below) and rounding the result to the nearest 1/10,000 of a share (the "Parent Common StockExchange Ratio") ), payable upon surrender surrender, in the manner provided in Section 2.02, of the certificate representing that formerly evidenced such share of Company Common Stock; provided, however, that if such quotient is less than 1.3167, the Exchange Ratio will be 1.3167 and if such quotient is greater than 1.6799, the Exchange Ratio will be 1.6799, (ii) $42.00 in cash, without interest (the "Cash Portion") and (iii) if the Closing shall not have occurred on or prior to March 31, 2006, an amount in cash equal to $0.0132 per day for each day during the period commencing April 1, 2006 through the date of the Closing (the "Interest Portion"; the Interest Portion, if any, together with the Stock Portion and Cash Portion, being the "Merger Consideration"). For the purposes of this Section 2.01, the term "Parent Average Closing Stock Price" means the average of the per share closing prices of Parent Common Stock on the NYSE during the 20 consecutive trading days ending on (and including) the date that is three trading days prior to the date of the Closing. At the Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a "Certificate") shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Merger Consideration, risk of forfeiture any dividends or other conditiondistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e), in each case to be issued or paid in consideration therefor upon surrender of such Certificate in accordance with Section 2.02(b), without interest. Notwithstanding the foregoing, if between the date of this Agreement and the certificates representing such Effective Time, (A) the outstanding shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary have been changed into a different number of shares or a different class, by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, (B) Parent declares or pays cash dividends in any fiscal quarter in excess of 200% of the amount of regularly quarterly dividends paid by the Parent immediately prior to ensure thatthe date hereof or (C) Parent engages in any spin-off or split-off, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth then in any such restricted stock purchase agreement case the Exchange Ratio shall be appropriately adjusted to reflect such action. The right of any holder of a Certificate to receive the Merger Consideration, any dividends or other agreementdistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e) shall be subject to and reduced by the amount of any withholding that is required under applicable tax Law.
Appears in 1 contract
Sources: Merger Agreement (Guidant Corp)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.2(e), $0.01 par value per share, of Company including, with respect to each such issued and outstanding share of Company Common Stock, the associated Rights Stock (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled in accordance with Section 2.1(b) and Dissenting Shares that are owned by Dissenting Stockholders that have properly exercised appraisal rights pursuant to Section 1.6(b), 262 of the DGCL) will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that (i) a number of fully paid, non-assessable shares of Common Stock common stock, no par value, of Parent ("PARENT COMMON STOCK") equal to the Exchange Ratio (as defined belowthe "STOCK CONSIDERATION"), and (ii) $10.725 in cash without interest from Parent (the "Parent Common StockCASH CONSIDERATION" and, together with the Stock Consideration, the ") upon surrender MERGER CONSIDERATION"). The "EXCHANGE RATIO" shall be equal to the Stock Value divided by the Closing VWAP; provided, however, that the Exchange Ratio shall be less than the Maximum Exchange Ratio. If the Exchange Ratio would have been equal to or greater than the Maximum Exchange Ratio but for the proviso in the previous sentence, then the Company may, in its sole discretion, require that, in lieu of the certificate representing such shares of Stock Consideration, Parent make a cash payment in an amount equal to the Stock Value (as calculated below) in addition to the Cash Consideration (the "CASH ELECTION"), and the term Merger Consideration shall include this cash payment as opposed to the Stock Consideration. All Company Common Stock in converted into the manner provided in right to receive the Merger Consideration pursuant to this Section 1.7 (or in the case 2.1(c) shall cease to be outstanding and shall be canceled and retired and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, certificate that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject represented such Company Common Stock ("COMPANY CERTIFICATE") shall thereafter cease to a repurchase optionhave any rights with respect to such Company Common Stock, risk of forfeiture except the right to receive the Merger Consideration to be issued in consideration therefor and any dividends or other condition under any applicable restricted stock purchase agreement distributions to which holders of Company Common Stock become entitled in accordance with this Article II upon the surrender of such Company Certificate. "STOCK VALUE" means the sum of (x) $3.575 plus (y) 0.25 multiplied by the Post-Signing VWAP minus (z) 0.25 multiplied by $13.4329; provided, however, that the Stock Value shall not be less than $3.475 or other agreement with greater than $4.275. "CLOSING VWAP" means the Company, then the shares volume weighted average price of Parent Common Stock issued for the 20 consecutive Trading Days in exchange for such shares of Company Common Stock will also be unvested and subject the period ending on the Trading Day immediately prior to the same repurchase optionClosing Date, risk of forfeiture or other conditionas reported by Bloomberg, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.Inc. "MAXIMUM EXCHANGE
Appears in 1 contract
Sources: Merger Agreement (CTS Corp)
Conversion of Company Common Stock. (a) Each share of Common Stockthe Company’s common stock, $0.01 par value $10.00 per share, of Company including, with respect to each such share of (“Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"”) issued and outstanding immediately at the Closing Date shall, by virtue of the Merger and without any action on the part of the holder thereof, cease to be outstanding and shall be converted into the right to receive from Parent a share of the aggregate consideration payable by Parent hereunder (the “Merger Consideration”) for all of the issued and outstanding Company Common Stock on the Closing Date. The Merger Consideration, which shall be payable in accordance with the provisions of this Article 2, shall consist of the aggregate of the following:
(i) One Hundred Eighty-five Million Dollars ($185,000,000) (the “Enterprise Value”) (which shall include the good faith deposit of $10,000,000 delivered to the Escrow Agent by Parent upon execution of this Agreement (the “Deposit”)); and
(ii) less the sum of the following (collectively, the “Price Adjustments”):
(A) the amount of all indebtedness of the Company and its Subsidiaries for borrowed funds, including but not limited to (1) unsecured revolving lines of credit, (2) notes payable to banks, (3) note(s) payable to the FCC in connection with the Company’s acquisition of its Portland PCS licenses, (4) indebtedness to Company stockholders including debentures or notes, (5) capital leases, and (6) Saco River Communications Corporation’s proportionate share (whether 50% or 100%) of New Hampshire Wireless, LLC debt (if not otherwise reflected on the Closing Date Balance Sheet) and including, in each case, both current and long-term portions thereof, together with the amount of any prepayment penalties which would be incurred by the Company or its Subsidiaries if such indebtedness is prepaid as of the Closing Date (which for purposes of this provision, only, shall include any time up to any including the time that the Closing Date Balance Sheet is prepared);
(B) without duplication, the amount of all other liabilities of the Company and its Subsidiaries, other than deferred income taxes, which are required to be reflected on a balance sheet of the Company and its Subsidiaries as non–current liabilities, determined in accordance with GAAP;
(C) all amounts due by the Company or its Subsidiaries to their employees which relate to or become due upon the consummation of the Merger and which are not paid prior to the Effective TimeClosing Date and which are not reflected as a current liability on the Closing Date Balance Sheet;
(D) the amount of the broker’s fees, legal fees, accounting fees, success fees and similar costs incurred by the Company or its Subsidiaries in connection with this transaction, except to the extent the same are either paid from the Expense Fund or reflected as a current liability on the Closing Date Balance Sheet; and
(E) all amounts due to Company shareholders other than any amounts due in the ordinary course of business to Company shareholders pursuant to arms length agreements which exist on the date hereof; and
(iii) plus the amount of Five Million Four Hundred Thousand Dollars ($5,400,000), but only if Saco River Communications Corporation owns, on the Closing Date, one hundred percent (100%) of New Hampshire Wireless, LLC or of the PCS license that is the sole material asset of New Hampshire Wireless, LLC (the “New Hampshire Wireless Price Variable”).
(iv) plus (or minus, if a negative number) an amount equal to: (A) the capital expenditures made by the Company and its Subsidiaries from January 1, 2000 through the date prior to the Closing Date, minus (B) an amount equal to: (I) $9,315 times (II) the number of days that elapse from and including January 1, 2000 through the date prior to the Closing Date. The Merger Consideration is also subject to a Working Capital Adjustment as provided in Section 2.08(c). Each certificate representing shares of Company Common Stock (each, a “Certificate”) shall be deemed at any time after the Closing Date to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into represent only the right to receive that number of shares of Common Stock of Parent equal upon surrender to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender Payment Agent a pro-rata share of the certificate representing such Merger Consideration in the amounts, at the times, and upon the conditions set forth in Sections 2.12 and 2.14. Each holder of record of a Certificate or Certificates which immediately prior to the Closing Date represented outstanding shares of Company Common Stock in the manner provided in Section 1.7 shall hereinafter be referred to as an “Eligible Shareholder.”
(or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if requiredb) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one Any share of Parent Company Common Stock held as reported treasury stock (“Treasury Shares”) on the New York Stock Exchange Closing Date shall, by virtue of the Merger, be canceled without payment of any consideration therefor and without any conversion thereof. Treasury Shares shall hereinafter be referred to as “Nonparticipating Shares”, shall be canceled and extinguished without conversion thereof or payment therefor upon consummation of the Merger, and shall not be deemed to be within the definition of the Company Common Stock, unless the provision shall otherwise expressly require.
(c) No sooner than the "NYSE"tenth (10th) for day, nor later than the ten fifth (105th) consecutive trading days ending day, before the Closing Date, the Company shall deliver to Parent an estimated proforma balance sheet of the Company (on a consolidated and consolidating basis), prepared in accordance with GAAP, as of the close of business on the trading day immediately preceding Closing Date based on the books and records and other information then available, including the effect of any National Exchange Carrier Association “true-ups” not reflected on the Company’s consolidated financial statements as of the Closing Date (the "Average Price"“Estimated Closing Balance Sheet”), together with its good faith calculation and estimates of the Price Adjustments as of the Closing Date. The Enterprise Value, as adjusted by the Price Adjustments, shall be increased by an amount equal to the difference between the Closing Date Working Capital (as defined in this Section 2.08(c)) of the Company as reflected on the Estimated Closing Balance Sheet and the amount of Six Million Nine Hundred Forty–two Thousand Four Hundred Eighteen Dollars ($6,942,418), determined as of December 31, 1999 (the “Target Working Capital”) if the Company’s Closing Date Working Capital exceeds the Target Working Capital, and shall be decreased by the amount of such difference if the Company’s Closing Date Working Capital is less than $24.00the Target Working Capital (the “Working Capital Adjustment”). The amount payable by Parent or Acquisition Sub on the Closing Date shall be equal to the Enterprise Value, Exchange Ratio shall mean the quotient determined by dividing 2.628 as adjusted by the Average PricePrice Adjustments, the Working Capital Adjustment and, to the extent applicable, the New Hampshire Wireless Price Variable (the “Estimated Merger Consideration”). For purposes of the foregoing calculation, “Closing Date Working Capital” means, subject to adjustment as provided in Section 2.12, current assets of the Company and its Subsidiaries calculated in accordance with GAAP, to the extent reflected on the Estimated Closing Balance Sheet, minus current liabilities of the Company and its Subsidiaries calculated in accordance with GAAP to the extent reflected on the Estimated Closing Balance Sheet; provided, furtherhowever, that if for purposes of calculating the Average Price is higher than $30.00aggregate amount of current liabilities, Exchange Ratio the following current liabilities shall mean be excluded: (i) the quotient determined by dividing 3.285 by amount of the Average Price. If any shares current portion of Company Common Stock outstanding immediately prior long–term debt reflected on the Estimated Closing Balance Sheet, to the Effective Time extent same are unvested included in the Price Adjustments pursuant to Section 2.08(a)(ii)(A), and (ii) the amount of the fees and expenses described in Section 2.08(a)(ii)(D) to the extent same will either be paid from the Expense Fund or are subject included in the Price Adjustments pursuant to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementsaid Section.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive that number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common StockMerger Consideration") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). The "Exchange Ratio" means the quotient obtained by dividing $2.72 by the Average Closing Price and rounding to the nearest 1/10,000. The "Average Closing Price" shall mean 0.1095; provided, that if be an amount equal to the average per share closing sale price of one share of Parent Common Stock Stock, as reported on the New York Stock Exchange Exchange, Inc. (the "NYSE") Composite Transactions Tape (as reported by The Wall Street Journal (Northeast edition), or, if not reported thereby, any other authoritative source) (the "NYSE Composite Transactions Tape") for the ten (10) consecutive 20 trading days ending on with the second trading day immediately preceding the Closing Date (Date. As of the "Average Price") is less than $24.00Effective Time, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a "Certificate") shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Merger Consideration, risk of forfeiture any dividends or other condition, distributions to which such holder is entitled pursuant to Section 2.02(c) and the certificates representing such any cash in lieu of fractional shares of Parent Common Stock may accordingly to be marked issued or paid in consideration therefor upon surrender of such Certificate in accordance with appropriate legendsSection 2.02(e), without interest. The Company shall take all action that may be necessary to ensure thatNotwithstanding the foregoing, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.if
Appears in 1 contract
Sources: Merger Agreement (Heartport Inc)
Conversion of Company Common Stock. Each share At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of the Company Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common StockStock (each, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock"a “Share”) issued and outstanding immediately prior to the Effective Time, Time (other than Dissenting Shares and any shares of Company Common Stock Shares to be canceled cancelled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.04(b)) shall be converted automatically into the right to receive receive, in accordance with the terms of this Agreement, (i) the Cash Consideration, without interest, and (ii) that number (the “Exchange Ratio”) of validly issued, fully-paid and non-assessable shares of Parent Common Stock of Parent (the “Stock Consideration” and, together with the Cash Consideration, the “Merger Consideration”) equal to the Exchange Ratio (as defined below) (quotient determined by dividing the "Stock Value by the Average Parent Stock Price, and rounding the result to the nearest 1/10,000 of a share of Parent Common Stock", payable in the manner set forth in Section 3.01; provided, however, that (x) if the number determined by dividing the Stock Value by the Average Parent Stock Price is less than or equal to 1.7098, the Exchange Ratio shall be 1.7098 and (y) if the number determined by dividing the Stock Value by the Average Parent Stock Price is greater than or equal to 1.9672, the Exchange Ratio shall be 1.9672. Except as set forth in Section 2.04(b), as a result of the Merger, each holder of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (“Certificates”) and each holder of Shares outstanding immediately prior to the Effective Time that are not represented by Certificates (“Book-Entry Shares”) shall thereafter cease to have any rights with respect to such Shares except (x) the right to receive the Merger Consideration, any dividends or other distributions pursuant to Section 3.01(c) and cash in lieu of any fractional shares payable pursuant to Section 3.01(e), in each case to be issued or paid, without interest, in consideration therefor upon surrender of such Certificate or transfer of the certificate representing such shares of Company Common Stock Book-Entry Shares in the manner provided in accordance with Section 1.7 3.01(b) (or in the case of a lost, stolen or destroyed certificateCertificate, upon delivery of an affidavit Section 3.01(j)) or (and bond, if requiredy) in the manner as provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementLaw.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
Conversion of Company Common Stock. Each share At the Effective Time, without any action on the part of Common Stock, $0.01 par value per share, of Company including, with respect to each such share the Parties or the holders of Company Common Stock, the associated Rights Merger shall be effected in accordance with the following terms:
(as defined in that certain Rights Agreement a) Each share of common stock, par value $0.01 per share, of Purchaser (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company “Purchaser Common Stock"”) issued and outstanding immediately prior to the Effective Time, other than any shares Time shall be converted into and exchanged for the right to receive one share of common stock of the Surviving Corporation.
(b) Each share of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled issued and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time (excluding shares cancelled pursuant to Section 3.3 and Dissenting Shares), together with the Company Rights issued pursuant to the Company Rights Agreement (as such terms are unvested or are defined in Section 5.16), shall, subject to the provisions of Section 3.7, be converted into and exchanged for the right to receive (i) $13.00 in cash (without interest), plus (ii) a repurchase optionnumber of fully paid, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the nonassessable shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested (together with the Parent Rights associated therewith) equal to $6.50 divided by the Applicable Price (the “Exchange Ratio”) ((i) and (ii) collectively, the “Per Share Merger Consideration”); provided, however, Parent may, at its sole option, adjust the Per Share Merger Consideration so that the Per Share Merger Consideration would instead, subject to the same repurchase optionprovisions of Section 3.7, risk consist of forfeiture (A) an amount (determined by Parent) in cash (without interest) greater than $13.00 but less than or other conditionequal to the Total Per Share Amount (the “Adjusted Cash Amount”), and the certificates representing such plus (B) a number of fully paid, nonassessable shares of Parent Common Stock (together with the Parent Rights associated therewith) equal to (1) the amount, if any, by which the Total Per Share Amount exceeds the Adjusted Cash Amount, divided by (2) the Applicable Price (the “Adjusted Exchange Ratio”). If Parent adjusts the Per Share Merger Consideration in accordance with the foregoing proviso, Parent shall deliver written notice to the Company and the stockholders of the Company at least five (5) Business Days prior to the Company Stockholders’ Meeting (as hereinafter defined), which written notice shall set forth the Adjusted Cash Amount and the Adjusted Exchange Ratio. It is expressly understood that Parent may accordingly be marked satisfy such notice obligation with appropriate legendsrespect to stockholders of the Company by issuing a press release in accordance with Parent’s normal business practices. The Company Exchange Ratio or the Adjusted Exchange Ratio, as applicable, shall take all action that may be necessary rounded to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementnearest one-ten thousandths of a share.
Appears in 1 contract
Sources: Merger Agreement (Ndchealth Corp)
Conversion of Company Common Stock. (i) Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective TimeTime (but excluding (x) shares to be canceled in accordance with Section 2.01(b), other than (y) shares to be converted in accordance with Section 2.01(c) and (z) any Dissenting Shares) shall be converted into the right to receive (A) a number of shares of validly issued, fully paid and nonassessable shares of common stock, par value, $0.01 per share, designated as Class V Common Stock (the “Class V Common Stock”) of Parent (the “Stock Consideration”) having terms as set forth in the Amended and Restated Certificate of Incorporation of Parent attached as Exhibit C hereto to be filed with the Secretary of State of the State of Delaware and made effective as of immediately prior to the Effective Time (the “Parent Certificate”) equal to the quotient (rounded to the nearest five decimal points) obtained by dividing (I) 222,966,450 by (II) the aggregate number of shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled issued and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested (including shares issued as a result of vesting of Company Equity Awards and shares contributed to Parent, Merger Sub or are subject any of their Affiliates, in each case as contemplated by Section 5.04) (which aggregate number will be set forth in a certificate of the Company delivered as of immediately prior to a repurchase optionthe Effective Time) and (B) $24.05 in cash, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement without interest (the “Cash Consideration” and, together with the CompanyStock Consideration, then the “Merger Consideration”). At the Effective Time, all shares of Parent Company Common Stock issued in exchange for converted into the right to receive the Merger Consideration pursuant to this Section 2.01(d) shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry shares (“Book-Entry Shares”), which immediately prior to the Effective Time represented any such shares of Company Common Stock will also shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, any dividends or other distributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e), without interest, in each case to be unvested and issued or paid in consideration therefor subject to compliance with the same repurchase optionprocedures set forth in this Section 2.01 upon surrender of such Certificate in accordance with Section 2.02(b), risk in the case of forfeiture or other conditioncertificated shares, and immediately, in the certificates representing such shares case of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from Book-Entry Shares.
(ii) If between the date of this Agreement and after the Effective Time, Parent there is entitled to exercise any such repurchase option a change in the number of shares of Company Common Stock or securities convertible or exchangeable into or exercisable for shares of Company Common Stock issued and outstanding as a result of a reclassification, stock split (including a reverse split), stock dividend or distribution, recapitalization, merger, subdivision, issuer tender or exchange offer, or other similar transaction, the Cash Consideration shall be appropriately adjusted to reflect such action; provided, however, that nothing in this Section 2.01(d)(ii) shall be construed to permit the Company to take any action that is otherwise prohibited by the terms of this Agreement.
(iii) Notwithstanding anything herein to the contrary, the right set forth in of any such restricted stock purchase agreement holder of Company Common Stock to receive the Merger Consideration, any dividends or other agreementdistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e) shall, to the extent provided in Section 2.02(j), be subject to and reduced by the amount of any withholding that is required under applicable Tax Law.
Appears in 1 contract
Sources: Merger Agreement (Emc Corp)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such issued and outstanding share of Company Common Stock, the associated Rights Stock (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive that number of shares of Common Stock of Parent equal to (x) from the Exchange Ratio (as defined below) Company, 0.20 (the "Parent Common StockNewco Exchange Ratio") upon surrender of the certificate representing such a validly issued, fully paid and nonassessable shares of Company Newco Common Stock in (the manner provided in Section 1.7 "Split-Off Consideration") and (or in the case y) from Parent, a number of a lostvalidly issued, stolen or destroyed certificate, upon delivery of an affidavit (fully paid and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one nonassessable share of Parent Common Stock equal to the Parent Exchange Ratio (the "Merger Consideration"). The Split-Off Consideration and the Merger Consideration are collectively referred to as reported the "Closing Consideration". For purposes of this Agreement, "Parent Exchange Ratio" means the quotient (rounded to the nearest 1/10,000) determined by dividing $35.00 by the average (rounded to the nearest 1/10,000) of the volume weighted averages (rounded to the nearest 1/10,000) of the trading prices of Parent Common Stock on the New York Stock Exchange (the "NYSE") ), as reported by Bloomberg Financial Markets (or such other source to which Parent and the Company may agree), for each of the ten (10) 20 consecutive trading days ending on with the third trading day immediately preceding the Closing Date (Effective Time. As of the "Average Price") is less than $24.00Effective Time, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a "Certificate") shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Closing Consideration, risk of forfeiture any dividends or other condition, distributions to which such holder is entitled pursuant to Section 2.02(c) and the certificates representing such any cash in lieu of fractional shares of Parent Common Stock may accordingly and Newco Common Stock to be marked issued or paid in consideration therefor upon surrender of such Certificate in accordance with appropriate legendsSection 2.02(e), without interest. The Company Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time (i) the outstanding shares of Parent Common Stock shall take all action that may be necessary have been changed into a different number of shares or a different class, by reason of the occurrence of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction or (ii) Parent shall have established the record date for such a change and such record date occurs prior to ensure that, from and after the Effective Time, the Parent is entitled Exchange Ratio shall be appropriately adjusted to exercise any reflect such repurchase option stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or other right set forth in any such restricted stock purchase agreement or other agreementsimilar transaction.
Appears in 1 contract
Sources: Agreement and Plan of Split Off and Merger (Inverness Medical Technology Inc/De)
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to Dissenting Shares or Cancelled Shares) shall be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number from Merger Sub a portion of shares of a validly issued, fully paid and non-assessable Parent Common Stock of Parent equal to the Exchange Ratio (as defined below) Share (the "Parent Common StockExchange Ratio") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095equal to 0.078; provided, that however, if the average closing sale price of one share of Average Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") Share Price is less than $24.003.22, the Exchange Ratio shall mean be equal to a decimal (rounded to the quotient nearest one-one thousandth place) determined by dividing 2.628 $0.25 by the Average Parent Share Price; provided, further, that however, if the Average Parent Share Price is higher greater than $30.003.86, the Exchange Ratio shall mean be equal to a decimal (rounded to the quotient nearest one-one thousandth place) determined by dividing 3.285 $0.30 by the Average Parent Share Price. If any shares Notwithstanding the preceding sentence, if the aggregate number of Parent Common Shares to be issued pursuant to this Section 2.1(a) plus the number of Parent Common Shares underlying each Company Warrant assumed by Parent pursuant to Section 2.3(c) would exceed 19.9% of the Parent Common Stock Shares outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with (the Company"Maximum Share Amount"), then appropriate adjustments shall be made to the Merger Consideration (as defined below) to be issued pursuant thereto such that (1) the aggregate number of Parent Common Shares to be included in the Merger Consideration is reduced to the extent required such that the aggregate number of Parent Common Shares to be so issued does not exceed the Maximum Share Amount and (2) an aggregate amount of cash consideration will be included in the Merger Consideration, such aggregate amount equal to the Average Parent Share Price multiplied by the number of Parent Common Shares so reduced (the "Cash Consideration"). Any reduction to the number of Parent Common Shares to be issued in the Merger, and any Cash Consideration to be included in the Merger Consideration, in each case in accordance with this Article II, shall be applied pro rata to the shares of Company Common Stock (including shares of Company Common Stock issuable in respect of Company Warrants) outstanding as of immediately prior to the Effective Time. As of the Effective Time, each share of Company Common Stock converted into the right to receive from Merger Sub the Parent Common Shares to be issued pursuant to this Article II plus, if applicable, the Cash Consideration (the "Merger Consideration") shall no longer be outstanding, shall automatically be cancelled and shall cease to exist, and uncertificated shares of Company Common Stock issued in exchange for represented by book-entry form ("Book-Entry Shares") and each certificate that, immediately prior to the Effective Time, represented any such shares of Company Common Stock will also be unvested and subject (each, a "Certificate") shall thereafter represent only the right to receive, pursuant to the same repurchase optionterms of this Agreement, risk the Merger Consideration into which the shares of forfeiture Company Common Stock represented by such Book-Entry Share or Certificate have been converted pursuant to this Section 2.1, as well as any cash in lieu of fractional Parent Common Shares to be issued or paid in consideration therefor and any dividends or other condition, and the certificates representing such shares distributions to which holders of Parent Company Common Stock may accordingly be marked become entitled in accordance with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementSection 2.2(e).
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive that number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common StockMerger Consideration") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). The "Exchange Ratio" means the quotient obtained by dividing $2.72 by the Average Closing Price and rounding to the nearest 1/10,000. The "Average Closing Price" shall mean 0.1095; provided, that if be an amount equal to the average per share closing sale price of one share of Parent Common Stock Stock, as reported on the New York Stock Exchange Exchange, Inc. (the "NYSE") Composite Transactions Tape (as reported by The Wall Street Journal (Northeast edition), or, if not reported thereby, any other authoritative source) (the "NYSE Composite Transactions Tape") for the ten (10) consecutive 20 trading days ending on with the second trading day immediately preceding the Closing Date (Date. As of the "Average Price") is less than $24.00Effective Time, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a "Certificate") shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Merger Consideration, risk of forfeiture any dividends or other condition, distributions to which such holder is entitled pursuant to Section 2.02(c) and the certificates representing such any cash in lieu of fractional shares of Parent Common Stock may accordingly to be marked issued or paid in consideration therefor upon surrender of such Certificate in accordance with appropriate legendsSection 2.02(e), without interest. The Company shall take all action that may be necessary to ensure thatNotwithstanding the foregoing, from if between the date of this Agreement and after the Effective TimeTime the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, Parent is entitled by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the Exchange Ratio shall be appropriately adjusted to exercise any reflect such repurchase option stock dividend, subdivision, reclassifi cation, recapitalization, split, combination, exchange of shares or other right set forth in any such restricted stock purchase agreement or other agreementsimilar transaction.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
Conversion of Company Common Stock. Each Except as otherwise provided in Section 3.1(c), the shares (the “Shares”) of the Company’s $0.00001 per share of par value common stock (the “Company Common Stock”), $0.01 per share par value Series A Preferred Stock (the “Company Series A Preferred Stock”), and the $0.01 per shareshare value Series B Preferred Stock (the “Company Series B Preferred Stock,” and together with the Company Common Stock and Company Series A Preferred Stock, the “Company Capital Stock”) shall be canceled, extinguished and converted into and become a right to receive (i) cash, without interest, in an amount equal to $5,000,000 (less the reserve amount set aside under Section 6.13(b), the amount deducted under Section 6.15, and any amount referenced in the Schedules to this Agreement as being withheld from the Closing Date Cash Consideration), of which $125,000 (the “▇▇▇▇▇▇▇ Money”) was previously paid by Vital Images to the Company includingon November 20, 2003 and January 8, 2004, and which shall be distributed to the holders of the Company Capital Stock in accordance herewith (the “Closing Date Cash Consideration”); plus (ii) cash in the amount of $1,000,000, retained in escrow pursuant to Section 9.1(c) of this Agreement (the “Escrow Amount”); plus (iii) a number of shares of validly issued, fully paid and nonassessable shares of Vital Images Common Stock (the “Stock Consideration”) equal to (A) $6,000,000, divided by (B) the Average Closing Price (subject to adjustment pursuant to Section 3.2, the “Exchange Ratio”); plus (iv) the Contingent Consideration. The Contingent Consideration, together with respect the Closing Date Cash Consideration, the Escrow Amount and the Stock Consideration, are hereinafter referred to each such share as the “Merger Consideration.” The Merger Consideration shall be payable to the holders of the Company Common Stock, Company Series A Preferred Stock and Company Series B Preferred Stock as follows:
(1) On the associated Rights Closing Date, each issued and then outstanding Share of Company Series A Preferred Stock and Company Series B Preferred Stock shall be converted into and become a right to receive at Closing (A) with respect to Series A Preferred Stock, $250.00 in cash, and (B) with respect to Series B Preferred Stock, $2,000.00 in cash. The aggregate amount of cash to be paid in respect of all Series A Preferred Stock and Series B Preferred Stock pursuant to this Section 3.1(b)(1) is referred to herein as defined in that certain Rights Agreement the “Preferred Consideration.”
(2) Before the "Closing Date, each issued and then outstanding Company Rights Plan") dated as of April 21, 1995, as amended, between Stock Right (other than the Company Series A Preferred Stock and American Stock Transfer Company Series B Preferred Stock) shall be exercised, fully paid by the holder thereof and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares converted into Shares of Company Common Stock to be canceled pursuant to Section 1.6(b)the terms of such Company Stock Right, will be canceled and extinguished at Closing, each issued and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares outstanding Share of Company Common Stock in the manner provided in Section 1.7 shall be converted into and become a right to receive at Closing (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit a) (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date Cash Consideration minus the Preferred Consideration) divided by (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares number of Shares of Company Common Stock outstanding immediately prior to on the Effective Time are unvested or are subject to a repurchase option, risk Closing Date) plus (b) the Stock Consideration divided by the number of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares Shares of Company Common Stock will also outstanding on the Closing Date (collectively, the “Common Per Share Closing Date Merger Consideration”).
(3) The Contingent Consideration shall be unvested distributed to such holders of Shares of Company Common Stock as set forth herein and subject shall take place at such times as set forth in Section 3.5.
(4) At the Closing, Vital Images shall deposit the Escrow Amount in the Escrow Account pursuant to the same repurchase option, risk of forfeiture or other conditionEscrow Agreement, and the certificates representing such shares Escrow Proceeds shall be distributed upon the termination of Parent Common Stock may accordingly be marked the Escrow Agreement in accordance with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementSection 3.4(b).
Appears in 1 contract
Conversion of Company Common Stock. Each (a) At the Effective Time, subject to Section 2.2(e) hereof, each share of the Class A Common Stock, $0.01 par value $.01 per share, of the Company including, with respect to (the "Class A Common Stock") and each such share of Company the Class B Common Stock, par value $.01 per share, of the associated Rights (as defined in that certain Rights Agreement Company (the "Company Rights Plan") dated as of April 21Class B Common Stock" and, 1995together with the Class A Common Stock, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as defined in Section 1.3(b) hereof) and other than shares of Company Common Stock owned directly or indirectly by Parent or the Company (except for shares held in managed accounts, trust accounts or otherwise in a fiduciary capacity that are beneficially owned by third parties) shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into and exchangeable for .9085 shares (the "Exchange Ratio") of the common stock, par value $2.00 per share, of Parent (together with the number of Parent Rights (as defined in Section 4.2 hereof) associated therewith) ("Parent Common Stock"). All of the shares of Company Common Stock converted into Parent Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate (each a "Certificate") previously representing any such shares of Company Common Stock shall thereafter only represent the right to receive (i) the number of whole shares of Parent Common Stock and (ii) the cash in lieu of fractional shares of Parent Common Stock into which the shares of Company Common Stock represented by such Certificate have been converted pursuant to this Agreement. Certificates previously representing shares of Company Common Stock shall be exchanged for certificates representing whole shares of Parent Common Stock and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such Certificates in accordance with Section 2.2 hereof, without any interest thereon. If prior to the Effective Time, Parent should split or combine the Parent Common Stock, or pay a dividend or other than distribution in the Parent Common Stock, then the Exchange Ratio shall be appropriately adjusted to reflect such split, combination, dividend or distribution. At the Effective Time, all shares of Company Common Stock owned directly or indirectly by Parent or the Company (except for shares in managed accounts, trust accounts or otherwise is a fiduciary capacity that are beneficially owned by third parties) shall be cancelled and shall cease to exist and no stock of Parent or other consideration shall be delivered in exchange therefor.
(b) Notwithstanding anything in this Agreement to the contrary, any shares of Company Common Stock to be canceled pursuant to Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock which are outstanding immediately prior to the Effective Time and which are unvested or are subject to a repurchase option, risk held by shareholders who shall not have voted such shares in favor of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement the Merger and who shall have filed with the Company, then Company a written objection to the shares Merger and a demand for appraisal of Parent Common Stock issued in exchange for such shares in the manner provided in Section 623 of Company Common Stock will also the BCL ("Dissenting Shares") shall not be unvested and subject converted into the right to receive, or be exchangeable for, the same repurchase optionconsideration provided for in Section 1.3(a) hereof, risk but, instead, the holders thereof shall be entitled to payment of forfeiture or other condition, and the certificates representing appraised value of such shares Dissenting Shares in accordance with the provisions of Parent Common Stock may accordingly be marked with appropriate legendsSection 623 of the BCL. The Company shall take all action that may be necessary (x) give Parent prompt written notice of the receipt of any notice from a shareholder of his intent to ensure thatdemand payment for his shares, from and after the Effective Time, Parent is entitled (y) not settle or offer to exercise settle any such repurchase option or other right set forth demands without the prior written consent of Parent and (z) not, without the prior written consent of Parent, waive any failure to timely deliver a written objection to the Merger and a demand for appraisal of such shares in any such restricted stock purchase agreement or other agreementaccordance with Section 623 of the BCL.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common StockSubject to Sections 2.02 and 2.03, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e2.01(ii) and (f)Dissenting Shares) shall be converted into the right to receive that number (x) the fraction of shares a share of Parent Common Stock (rounding to the nearest ten-thousandth of Parent a share) equal to the quotient (the “Exchange Ratio Ratio”) obtained by dividing (A) $10.00 by (B) the Parent Trading Price (as defined below) ); provided, however, that if the Parent Trading Price is equal to or less than $34.42, the Exchange Ratio shall equal 0.2905 (the "Parent “Stock Consideration”) and (y) $30.00 in cash (the “Cash Consideration” and, together with the Stock Consideration, the “Merger Consideration”). All such shares of Company Common Stock", when so converted, shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate (or evidence of shares in book-entry form) upon surrender of that immediately prior to the certificate representing Effective Time represented any such shares of Company Common Stock (each, a “Certificate”) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration and any cash in lieu of fractional shares of Parent Common Stock to be issued or paid in consideration therefor and any dividends or other distributions to which holders become entitled upon the manner provided surrender of such Certificate in accordance with Section 1.7 2.02, without interest. For purposes of this Agreement, (or in i) “Parent Common Stock” means the case common stock, par value $1.00 per share, of a lost, stolen or destroyed certificate, upon delivery of an affidavit Parent and (and bond, if requiredii) in “Parent Trading Price” means the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale volume-weighted sales price of one per share taken to four decimal places of Parent Common Stock as reported on by the New York Stock Exchange (the "NYSE") for the ten (10) consecutive period of thirty trading days ending beginning at 9:30 a.m. New York time on the thirty-third trading day immediately preceding the Closing Date (and concluding at 4:00 p.m. New York time on the "Average Price") is less than $24.00third trading day immediately preceding the Closing Date, Exchange Ratio shall mean as calculated by Bloomberg Financial LP under the quotient determined by dividing 2.628 by function “VWAP.” Notwithstanding the Average Price; providedforegoing, further, that if between the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares date of Company Common Stock outstanding immediately prior to this Agreement and the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the outstanding shares of Parent Common Stock issued in exchange for such shares of or Company Common Stock will also be unvested and subject to shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then any number or amount contained herein which is based upon the same repurchase option, risk number of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock or Company Common Stock, as the case may accordingly be, will be marked with appropriate legendsappropriately adjusted to provide to Parent and the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such event. The Company As provided in Section 2.02(j), the right of any holder of a Certificate to receive the Merger Consideration shall take all action that may be necessary subject to ensure that, from and after reduced by the Effective Time, Parent is entitled to exercise amount of any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreementrequired withholding under applicable Tax Law.
Appears in 1 contract
Sources: Merger Agreement (Centurylink, Inc)
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such issued and outstanding share of Company Common Stock, the associated Rights Stock (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive that number of shares of Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common StockExchange Ratio") upon surrender of the certificate representing such fully paid and nonassessable shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock equal to the amount obtained by dividing the Per Share Price (as hereinafter defined) by the Average Price (as hereinafter defined). The "Per Share Price" shall mean $27.55. The "Average Price" shall mean the average per share closing price of Parent Common Stock during the 20 full trading days preceding the date of the last full trading day prior to the Stockholders Meeting (as defined in Section 5.01) or any adjournment or postponement at which the Stockholder Approval (as defined in Section 3.01(q)) is obtained, as such prices are reported on the New York Stock Exchange (the "NYSE") for Composite Transactions Tape (as reported by The Wall Street Journal, or, if not reported thereby, any other authoritative source). As of the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00Effective Time, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject shall cease to have any rights with respect thereto, except the same repurchase option, risk of forfeiture or other condition, and the certificates representing such right to receive shares of Parent Common Stock may accordingly and any cash in lieu of fractional shares of Parent Common Stock to be marked issued or paid in consideration therefor upon surrender of such certificate in accordance with appropriate legendsSection 2.02, without interest. The Company shall take all action that may be necessary to ensure thatNotwithstanding the foregoing, from if between the date of this Agreement and after the Effective TimeTime the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or if Parent is entitled pays or declares an extraordinary dividend with a record date prior to exercise any the Effective Date, the Exchange Ratio shall be appropriately adjusted to reflect such repurchase option stock dividend, subdivision, reclassification, recapitalization, split, combination or other right set forth in any such restricted stock purchase agreement exchange or other agreementextraordinary dividend.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
Conversion of Company Common Stock. Each share of Common Stock, $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to Dissenting Shares, as defined below, which shall be canceled pursuant to treated as set forth in Section 1.6(b), will 2.3 below) shall be canceled and extinguished and converted automatically converted (subject to Sections 1.6(e) and (f)) into the right to receive that the following consideration (the aggregate amount of consideration payable to holders of Company Common Stock (the “Company Stockholders”) upon consummation of the Merger is referred to in this Agreement as the “Merger Consideration”):
(i) an unsecured promissory note in substantially the same form as Exhibit D attached hereto (the “Closing Note”) equal to (A) $2,000,000 divided by (B) the number of Outstanding Company Shares (as defined below);
(ii) the number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent equal to the Exchange Ratio (as defined below) (the "Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00however, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; providedthat, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk cancellation of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the an aggregate of 349,220 shares of Parent Common Stock issued in exchange for such accordance with Section 8.11 of this Agreement, an aggregate of 2,378,912 shares (the “Escrow Shares”) of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such 7,136,736 shares of Parent Common Stock may accordingly issuable hereunder will be marked delivered into escrow pursuant to Section 2.5 hereof and held as specified in such Section 2.5 and the Escrow Agreement (as defined below) and will be subject to release to the Company Stockholders upon satisfaction of the Sales Condition (as defined below); and
(iii) upon satisfaction of the Sales Condition, an additional cash payment (the “Deferred Cash Consideration”) equal to (A) $1,000,000 divided by (B) the number of Outstanding Company Shares. If the Sales Condition has been satisfied (and subject to holdback for indemnification claims made against the Company Stockholders in accordance with appropriate legends. The Article XI of this Agreement) the Deferred Cash Consideration shall be distributed to the holders of Company shall take all action that may be necessary to ensure that, from and after Common Stock within sixty (60) days following the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth end of the calendar quarter in any such restricted stock purchase agreement or other agreementwhich the Sales Condition was first satisfied.
Appears in 1 contract
Conversion of Company Common Stock. Each share of Common StockSubject to Section 2.02(e), $0.01 par value per share, of Company including, with respect to each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares of Company Common Stock to be canceled pursuant to in accordance with Section 1.6(b), will be canceled and extinguished and automatically converted (subject to Sections 1.6(e) and (f2.01(b)) shall be converted into the right to receive (i) that number of validly issued, fully paid and nonassessable shares of Parent Common Stock of Parent (the “Stock Portion”) equal to the Exchange Ratio quotient determined by dividing $36.50 by the Parent Average Closing Stock Price (as defined below) and rounding the result to the nearest 1/10,000 of a share (the "Parent Common Stock") “Exchange Ratio”), payable upon surrender surrender, in the manner provided in Section 2.02, of the certificate representing that formerly evidenced such share of Company Common Stock; provided, however, that if such quotient is less than 1.2647, the Exchange Ratio will be 1.2647 and if such quotient is greater than 1.5453, the Exchange Ratio will be 1.5453, (ii) $36.50 in cash, without interest (the “Cash Portion”) and (iii) if the Closing shall not have occurred on or prior to March 31, 2006, an amount in cash equal to $0.0120 per day for each day during the period commencing April 1, 2006 through the date of the Closing (the “Interest Portion”; the Interest Portion, if any, together with the Stock Portion and Cash Portion, being the “Merger Consideration”). For the purposes of this Section 2.01, the term “Parent Average Closing Stock Price” means the average of the per share closing prices of Parent Common Stock on the NYSE during the 20 consecutive trading days ending on (and including) the date that is three trading days prior to the date of the Company Shareholders’ Meeting. At the Effective Time, all such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that if the average closing sale price of one share of Parent Common Stock as reported on the New York Stock Exchange (the "NYSE") for the ten (10) consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding certificate which immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under represented any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject (each, a “Certificate”) shall cease to have any rights with respect thereto, except the same repurchase optionright to receive the Merger Consideration, risk of forfeiture any dividends or other conditiondistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e), in each case to be issued or paid in consideration therefor upon surrender of such Certificate in accordance with Section 2.02(b), without interest. Notwithstanding the foregoing, if between the date of this Agreement and the certificates representing such Effective Time, (A) the outstanding shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary have been changed into a different number of shares or a different class, by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, (B) Parent declares or pays cash dividends in any fiscal quarter in excess of 200% of the amount of regularly quarterly dividends paid by the Parent immediately prior to ensure thatthe date hereof or (C) Parent engages in any spin-off or split-off, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth then in any such restricted stock purchase agreement case the Exchange Ratio shall be appropriately adjusted to reflect such action. The right of any holder of a Certificate to receive the Merger Consideration, any dividends or other agreementdistributions payable pursuant to Section 2.02(c) and cash in lieu of any fractional shares payable pursuant to Section 2.02(e) shall be subject to and reduced by the amount of any withholding that is required under applicable tax Law.
Appears in 1 contract
Conversion of Company Common Stock. Each share (a) As of Common Stockthe Effective Time, $0.01 par value per share, by virtue of the Merger and without any action on the part of the holder of any shares of Company includingCommon Stock or any shares of capital stock of Merger Sub, with respect except as otherwise provided in this Section 2.03 and subject to Sections 2.04 and 2.05(f), each such share of Company Common Stock, the associated Rights (as defined in that certain Rights Agreement (the "Company Rights Plan") dated as of April 21, 1995, as amended, between the Company and American Stock Transfer and Trust Company as Rights Agent) (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, Time (other than any shares to be cancelled in accordance with Section 2.02) shall be converted into, at the election of the holder thereof, one of the following (or a combination of shares of Company Parent Common Stock to be canceled pursuant to Section 1.6(band cash determined in accordance with Sections 2.03(d), will be canceled and extinguished and automatically converted (subject to Sections 1.6(ee), (f) and (fg)) into (the "Merger Consideration"):
(i) the right to receive that the number of shares of Parent Common Stock of determined by dividing $55.00 by the Average Parent equal Share Price and rounding the result to the Exchange Ratio (as defined below) nearest one thousandth of a share (the "Stock Consideration"); provided, however, that in no event shall the Stock Consideration be less than 1.275 or more than 1.612 shares of Parent Common Stock") upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 1.9). "Exchange Ratio" shall mean 0.1095; provided, that further, that, in any event, if between the date of this Agreement and the Effective Time the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Stock Consideration shall be correspondingly adjusted to the extent appropriate to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The "Average Parent Share Price" means the average closing sale price of one the last sales prices per share of Parent Common Stock as reported on the New York Stock Exchange Exchange, Inc. (the "NYSEStock Exchange") Composite Tape for the ten (10) 20 consecutive trading days ending on the trading day immediately preceding the Closing Date (the "Average Price") which is less than $24.00, Exchange Ratio shall mean the quotient determined by dividing 2.628 by the Average Price; provided, further, that if the Average Price is higher than $30.00, Exchange Ratio shall mean the quotient determined by dividing 3.285 by the Average Price. If any shares of Company Common Stock outstanding immediately five days prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.Closing Date; or
Appears in 1 contract