Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”. (b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election. (c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein. (d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline. (e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership. (f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
Election Procedures. (a) An TD Banknorth shall appoint an agent, who shall be reasonably acceptable to H▇▇▇▇▇ United (the “Exchange Agent”), for the purpose of exchanging certificates that immediately prior to the Effective Time evidenced shares of H▇▇▇▇▇ United Common Stock (the “Certificates”) for the Merger Consideration. The Exchange Agent shall mail an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) ), in such form as BEPC H▇▇▇▇▇ United and Acquisition Sub TD Banknorth shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”), no later than 15 Business Days prior to the anticipated Effective Time or on such earlier date as TD Banknorth and H▇▇▇▇▇ United may mutually agree (the “Mailing Date”) to each holder of record of H▇▇▇▇▇ United Common Stock as of five Business Days prior to the Mailing Date (the “Election Form Record Date”), provided, however, that Election Forms need not be mailed prior to the receipt of the Requisite Regulatory Approvals (exclusive of the expiration or termination of statutory waiting periods). The Exchange Agent shall make available an additional Election Form to all Persons who become record holders of H▇▇▇▇▇ United Common Stock between the Election Form Record Date and the close of business on the fifth Business Day prior to the Election Deadline (the “Secondary Election Form Record Date”). Each Election Form shall permit each holder of record of H▇▇▇▇▇ United Common Stock (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to specify (i) the number of shares of H▇▇▇▇▇ United Common Stock which such holder desires to have converted into the right to receive TD Banknorth Common Stock as provided herein (the “H▇▇▇▇▇ United Stock Election Shares”) and (ii) the number of shares of H▇▇▇▇▇ United Common Stock which such holder desires to have converted into the right to receive cash as provided herein (the “H▇▇▇▇▇ United Cash Election Shares”). Any holder of H▇▇▇▇▇ United Common Stock who fails properly to submit an Election Form on or before the Election Deadline in accordance with the procedures set forth in this Section 3.2 or shall have acquired shares of H▇▇▇▇▇ United Common Stock after the Secondary Election Form Record Date shall be mailed deemed to holders of Company Common hold H▇▇▇▇▇ United Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Election Shares”.
(b) Each To be effective, a properly completed and executed Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior be submitted to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York City time, on a date to be decided by TD Banknorth and reasonably acceptable to H▇▇▇▇▇ United (which date shall not be earlier than 15 Business Days after the business day immediately preceding Mailing Date and no later than the date of the Company Shareholders Meeting Effective Time) (the “Election Deadline”) ). An Election Form shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available properly completed by a holder of H▇▇▇▇▇ United Common Stock only if accompanied by one or more Election Forms as may reasonably be requested from time to time by all persons who become holders Certificates (or beneficial ownerscustomary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Eligible Company Shares between H▇▇▇▇▇ United Common Stock, held by such holder, or by an appropriate guarantee of delivery of such Certificates from a member of any registered national securities exchange or of the record date for National Association of Securities Dealers, Inc. or by a commercial bank or trust company in the Company Shareholders Meeting United States as set forth in such Election Form. Any holder of H▇▇▇▇▇ United Common Stock who has made an election by submitting an Election Form to the Exchange Agent may at any time prior to the Election Deadline change such holder’s election by submitting a revised Election Form, properly completed and signed that is received by the Exchange Agent prior to the Election Deadline. Any holder of H▇▇▇▇▇ United Common Stock may at any time prior the Election Deadline revoke such holder’s election and withdraw such holder’s Certificates deposited with the Exchange Agent by written notice to the Exchange Agent received by the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 3 contracts
Sources: Merger Agreement (Td Banknorth Inc.), Merger Agreement (Toronto Dominion Bank), Merger Agreement (Hudson United Bancorp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be included by the Company in the Form S-4 and the Proxy Statement or mailed on a date to holders be mutually agreed by Parent and the Company that is not more than forty-five (45) days nor less than thirty (30) days prior to the anticipated Charter Closing Date or on such other date as Parent and the Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record Shares as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth (5th) Business Day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all Persons who become holders (or beneficial owners) of Company Shares between the Election Form Record Date and the close of business on the Business Day prior to the Election Deadline, and the Company shall provide to the Payment Agent all information reasonably necessary for it to perform as specified herein. Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) (A) the number of record of Eligible such holder’s Company Shares as with respect to which such holder makes a Cash Election or (B) the number of immediately prior such holder’s Company Shares with respect to which such holder makes a Stock Election and (ii) whether such holder affirmatively elects to exchange all, but not less than all, of the shares of Class A Stock entitled to be received by such holder in the Pre-Closing Dividend (including shares of Class A Stock to be received pursuant to the Election Deadline to elect (an “Excess Stock Dividend, if applicable, by holders making a Cash Election”) to receive shares of New York Company Class C for Parent Common Stock (and, upon completion of Units in the Parent ExchangeCommon Units Exchange (a “Parent Common Units Election” and each Company Share with respect to which a Parent Common Units Election has been properly made and not revoked pursuant to this Section 2.08, a “Parent LP Units) for all of the Eligible Company Shares held by such holderCommon Units Election Share”). The holders of any Eligible Any Company Shares with respect to which the Exchange Payment Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Eastern time, on the business twenty-fifth (25th) day immediately preceding following the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting shall agree) (the “Election Deadline”) shall be deemed not to have be “Non-Electing Shares.” Notwithstanding anything to the contrary contained in this Section 2.08, (i) in the event that there is (or is deemed to be) a Parent Common Units Election with respect to eighty percent (80%) or more of the shares of Class A Stock to be issued in the Pre-Closing Dividend, then, at Parent’s election, all shares of Class A Stock that are issued in the Pre-Closing Dividend shall be exchanged for Parent Common Units in the Parent Common Units Exchange regardless of whether a Parent Common Units Election is made an Electionwith respect to any such shares of Class A Stock; provided that Parent provides the Company notice of such election at least two (2) Business Days prior to the Charter Effective Date; and (ii) in the event that there is (or is deemed to be) a Parent Common Units Election with respect to ninety percent (90%) or more of the shares of Class A Stock to be issued in the Pre-Closing Dividend, then all shares of Class A Stock that are issued in the Pre-Closing Dividend shall be exchanged for Parent Common Units in the Parent Common Units Exchange regardless of whether a Parent Common Units Election is made with respect to any such shares of Class A Stock.
(c) BEPC and Acquisition Sub Any election shall make available one or more have been properly made only if the Payment Agent shall have actually received a properly completed Election Forms as may reasonably be requested from time to time Form by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked or changed by the authorized Person properly submitting such Election Form, by written notice received by the Payment Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed become Non-Electing Shares, except to have made no Election, unless the extent a subsequent Election election is submitted by the holder properly made with respect to any or all of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior . Subject to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration terms of transfers this Agreement and of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as the Payment Agent shall have reasonable discretion to when Elections determine whether any election, revocation or change has been properly or timely made and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Payment Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub the Company or the Exchange Payment Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 3 contracts
Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Election Procedures. (ai) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates any certificate (a “Certificate”) theretofore representing shares of Company Common Stock or non-certificated shares represented by book entry (“Book Entry Shares”) shall pass, only upon proper delivery of such Eligible Certificates or Book Entry Shares, respectively, to the Exchange Agent) ), in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) ), shall be mailed together or contemporaneously with the Joint Proxy Statement (the “Mailing Date”) to holders of Company Common Stock each holder of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as of the close of business on the record date for notice of the Company Shareholders Meeting (the “Eligible Company SharesElection Form Record Date”).
(bii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of any Excluded Shares or any Appraisal Shares, to specify (A) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Mixed Consideration, (B) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Stock Election Consideration, or (C) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “Non-Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 30th day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and Parent shall agree) (the “Election Deadline”) (other than any shares of Company Common Stock that constitute Appraisal Shares as of such time) shall also be deemed not to have made an Electionbe Non-Election Shares.
(ciii) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(div) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline Deadline. If an Election Form purports to make an election for a certificated Share of Company Common Stock or Book Entry Shares, then an Election Form shall be deemed properly completed only (iiA) if accompanied by one or more Certificates (or customary affidavits and, if required by Parent or the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate) and/or (B) upon receipt of an “agent’s message” by the Exchange Agent or such other evidence of transfer of Book Entry Shares to the Exchange Agent as the Exchange Agent may reasonably request, collectively representing all shares of Company Common Stock covered by such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth Form, together with duly executed transmittal materials included in the Election Form. After Any Election Form may be revoked or changed by the Person submitting such Election Form by written notice received by the Exchange Agent prior to the Election Deadline. In the event an Election Form is validly revoked prior to the Election Deadline, the shares of Company Common Stock represented by such Election Form shall become Non-Election Shares and Parent shall cause the Certificates representing such shares of Company Common Stock or Book Entry Shares to be promptly returned without charge to the Person submitting the Election Form upon written request to that effect from the holder who submitted the Election Form, except to the extent (if any) a subsequent election is properly made with respect to any Eligible Company Shares, no further registration of transfers or all of such Eligible shares of Company Shares shall be made on Common Stock. Subject to the transfer books terms of the Company unless this Agreement and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as Parent shall have sole discretion, which it may delegate in whole or in part to when Elections and revocations of Elections were received by the Exchange Agent Agent, to determine whether any election, revocation or change has been properly or timely made and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith reasonable decisions of Parent (or the Exchange Agent, if so empowered) regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Merger Sub or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything Elections will be deemed to be revoked if this Agreement is terminated in this Section 4.02 to the contrary, the Exchange Agent may, accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsits terms.
Appears in 3 contracts
Sources: Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Parlux Fragrances Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC M&T and Acquisition Sub ▇▇▇▇▇▇ shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall be mailed 35 days prior to holders the anticipated Closing Date or on such other date as M&T and ▇▇▇▇▇▇ shall mutually agree (the “Mailing Date”) to each holder of Company record of ▇▇▇▇▇▇ Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth Business Day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (A) the number of record shares of Eligible Company Shares as such holder’s ▇▇▇▇▇▇ Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (B) the number of immediately prior shares of such holder’s ▇▇▇▇▇▇ Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Deadline to elect (an “ElectionShares”) or (C) that such holder makes no election with respect to receive shares of New York Company Class C such holder’s ▇▇▇▇▇▇ Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder“No Election Shares”). The holders of any Eligible Company Shares Any Hudson Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York City time, on the business 30th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as M&T and ▇▇▇▇▇▇ may mutually agree) (the “Election Deadline”) shall also be deemed not to have be No Election Shares. Notwithstanding anything contained herein to the contrary, any election that may be made an Electionwith respect to any share to be cancelled pursuant to Section 2.1(a) with respect of the ESOP indebtedness shall be disregarded for purposes of Section 2.3(f).
(c) BEPC and Acquisition Sub M&T shall make available one or more Election Forms as may reasonably be requested from time to time by all persons any person who become holders becomes a holder (or beneficial ownersowner) of Eligible Company Shares ▇▇▇▇▇▇ Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company ▇▇▇▇▇▇ shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Old Certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of ▇▇▇▇▇▇ Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder Exchange Agent by the Election Deadline, the shares of Eligible Company Shares ▇▇▇▇▇▇ Common Stock represented by such Election Form shall become No Election Shares and M&T shall cause the Old Certificates to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of M&T regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither M&T nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. .
(e) Notwithstanding anything any other provision contained in this Agreement, the total number of shares of ▇▇▇▇▇▇ Common Stock that will be converted into the right to receive the Per Share Cash Consideration pursuant to Section 4.02 2.1 (which, for this purpose, shall be deemed to include the Dissenting Shares) shall equal the sum of (i) 204,338,066 shares of ▇▇▇▇▇▇ Common Stock and (ii) the product of (A) 40% and (B) the number of shares of ▇▇▇▇▇▇ Common Stock that are issued, from and after the date hereof and prior to the contraryEffective Time, pursuant to the exercise of ▇▇▇▇▇▇ Stock Options and ▇▇▇▇▇▇ Other Stock Awards outstanding as of the date hereof (such number of shares of ▇▇▇▇▇▇ Common Stock, the “Target Cash Conversion Amount”).
(f) Within 10 Business Days after the Effective Time, M&T shall cause the Exchange Agent may, to effect the allocation among the holders of ▇▇▇▇▇▇ Common Stock of rights to receive M&T Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (Hudson City Bancorp Inc), Merger Agreement (M&t Bank Corp)
Election Procedures. (a) An Subject to the proration and redesignation procedures set forth in Section 1.10, each holder of record of shares of Company Common Stock (excluding Dissenting Shares) will be entitled to elect to receive for each such share the Cash Consideration or the Parent Stock Consideration. All such elections shall be made on an election form and other appropriate and customary transmittal materials (which shall specify designed for that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) purpose in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the an “Election Form”) shall be mailed to holders ). Holders of record of shares of Company Common Stock who hold such shares as nominees, trustees or in other representative capacities (“Share Representatives”) may submit multiple Election Forms, provided that such Share Representative certifies that each such Election Form covers all the shares of Company Common Stock held by each such Share Representative for a particular beneficial owner.
(b) The maximum number of shares of Company Common Stock to be converted into the right to receive Cash Consideration for such shares, consisting of those shares subject to Cash Elections, shall be an amount equal to twenty-five percent of the number of shares of Company Common Stock outstanding immediately prior to the Effective Time (excluding Dissenting Shares) (the “Maximum Cash Election Number”). The maximum number of shares of Company Common Stock to be converted into the right to receive Parent Stock Consideration for such shares, consisting of those shares subject to Stock Elections, shall be an amount equal to seventy-five percent of the number of shares of Company Common Stock outstanding immediately prior to the Effective Time (the “Maximum Stock Election Number”).
(c) The Election Form shall be mailed with the Joint Proxy Statement to all holders of record of shares of Company Common Stock as of the record date for of the Company Shareholders Stockholders Meeting. As used hereinThereafter, the Company and Parent shall each use its reasonable and diligent efforts to mail or make available the Election Form to all persons who become holders of shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit during the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares period between the record date for the Company Shareholders Stockholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company Parent shall provide to the Exchange Agent with all information reasonably necessary for it to perform as specified herein. To be effective, an Election Form must be properly completed and received by the Exchange Agent on or before 5:00 p.m., Chicago Time, on the fifth Business Day prior to the Effective Time (the “Election Deadline”). Any Election Form may be revoked or modified by the person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or modification is actually received by the Exchange Agent at or prior to the Election Deadline. Subject to the terms of this Agreement and the Election Form, the Exchange Agent shall have reasonable discretion to determine whether any election, revocation or modification has been properly or timely made and to disregard immaterial defects in any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive.
(d) Any Election Form may received by the Exchange Agent after the Election Deadline shall be revoked deemed to be a Stock Election and any holder of Company Common Stock not returning an effective Election Form to the Exchange Agent prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the (including any holder of Eligible Company Dissenting Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the who has not returned an effective Election Form prior to the Election Deadline.
(e) Any Election shall be deemed to have been properly made only a Stock Election. In addition, if (i) the Exchange Agent shall have received a determined that any purported Stock Election or Cash Election was not properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Sharesmade, such purported Stock Election or Cash Election shall be deemed automatically revoked in to be of no force and effect and the event holder of any transfer shares of Company Common Stock making such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether purported Stock Election or not an Cash Election shall for all purposes hereof be deemed to have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsStock Election.
Appears in 2 contracts
Sources: Merger Agreement (First Mid Illinois Bancshares Inc), Merger Agreement (First Clover Leaf Financial Corp.)
Election Procedures. (ai) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Galaxy and Acquisition Sub Mars shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall be mailed mailed, together with appropriate transmittal materials, at the time of mailing to holders of Company record of Galaxy Common Stock of the Joint Proxy Statement/Prospectus in connection with the Galaxy Meeting (the “Mailing Date”) to each holder of record of Galaxy Common Stock as of the record date for close of the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth Business Day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(bii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (A) the number of record shares of Eligible Company Shares as such holder’s Galaxy Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (the “Stock Election Shares”), (B) the number of immediately prior shares of such holder’s Galaxy Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (the “Cash Election Deadline to elect (an “ElectionShares”) or (C) that such holder makes no election with respect to receive shares of New York Company Class C such holder’s Galaxy Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder“No Election Shares”). The holders of any Eligible Company Shares Any Galaxy Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business Business Day immediately prior to the day immediately preceding the date of the Company Shareholders Galaxy Meeting (the “Election Deadline”) shall be deemed not to have made an Electionbe No Election Shares.
(ciii) BEPC and Acquisition Sub Mars shall make available one or more Election Forms as may reasonably be requested from time to time by all persons any person who become holders becomes a holder (or beneficial ownersowner) of Eligible Company Shares Galaxy Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Galaxy shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(div) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the destruction of such Certificates or the guaranteed delivery of such Certificates and, if required by the Exchange Agent, the posting by the holder of such Certificate of a bond in customary amount as indemnity against any claim that may be made against it with respect to such Certificate) representing all shares of Galaxy Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form, only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder Exchange Agent by the Election Deadline, the shares of Eligible Company Shares Galaxy Common Stock represented by such Election Form shall become No Election Shares and Mars shall cause the Certificates to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion in consultation with Mars to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decision of Mars regarding such matters shall be binding and conclusive. None of ParentNeither Holdco, BEPCMars, Acquisition Sub or Galaxy nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to .
(v) As soon as practicable after the contraryEffective Time, Mars shall instruct the Exchange Agent may, to effect the allocation among the holders of Galaxy Common Stock of rights to receive Holdco Common Stock or cash in the Galaxy Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (Macrovision Corp), Merger Agreement (Gemstar Tv Guide International Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to a bank or trust company designated by Buyer and reasonably satisfactory to Company (the “Exchange Agent”)) in such form as BEPC Company and Acquisition Sub Buyer shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) ), shall be mailed no more than forty (40) and no less than twenty (20) Business Days prior to holders the anticipated Election Deadline (the “Mailing Date”) to each holder of record of Company Common Stock. Each Election Form shall permit the holder of record of Company Common Stock (or in the case of nominee record as holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all or a portion of such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a portion of such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the receipt of the record date for Cash Consideration or the Company Shareholders Meeting. As used herein, Stock Consideration (a “Non-Election”); sixty percent (60%) of the total number of shares of Company Common Stock issued and outstanding and not held by immediately prior to the Effective Time, excluding any Parent Stockholder Treasury Stock (the “Stock Conversion Number”), shall be converted into the Stock Consideration and forty percent (40%) of such shares of Company Common Stock shall be converted into the Cash Consideration. A record holder acting in different capacities or acting on behalf of other Persons in any way will be entitled to submit an Election Form for each capacity in which such record holder so acts with respect to each Person for which it so acts. Shares of Company Common Stock as to which a Cash Election has been made are referred to herein as “Eligible Cash Election Shares.” Shares of Company Common Stock as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares of Company Common Stock as to which no election has been made (or as to which an Election Form is not properly completed and returned in a timely fashion) are referred to herein as “Non-Election Shares.” The aggregate number of shares of Company Common Stock with respect to which a Stock Election has been made is referred to herein as the “Stock Election Number.”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York City time, on a date no later than the business day immediately preceding 5th Business Day prior to the Closing Date to be mutually agreed upon by the parties (which date of the Company Shareholders Meeting shall be publicly announced by Buyer as soon as practicable prior to such date) (the “Election Deadline”) shall be deemed not ), accompanied by the Certificates as to have which such Election Form is being made or by an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms appropriate guarantee of delivery of such Certificates, as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to set forth in the Election DeadlineForm, and from a member of any registered national securities exchange or a commercial bank or trust company in the Company shall provide United States (provided that such Certificates are in fact delivered to the Exchange Agent all information by the time required in such guarantee of delivery; failure to deliver shares of Company Common Stock covered by such guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made election, unless otherwise determined by Buyer, in its sole discretion). For shares of Company Common Stock held in book entry form, Buyer shall establish procedures for delivery of such shares, which procedures shall be reasonably necessary for it acceptable to perform as specified herein.
Company. If a holder of Company Common Stock either (di) Any does not submit a properly completed Election Form may be revoked in a timely fashion or (ii) revokes the holder’s Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless (without later submitting a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any ), the shares of Company Common Stock held by such holder shall be designated Non-Election Shares. In addition, all Election Forms shall have automatically be revoked, and all Certificates returned, if the Exchange Agent is notified in writing by Buyer and Company that this Agreement has been properly made only if (i) terminated. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(c) The allocation among the holders of shares of Company Common Stock of rights to receive the Cash Consideration and the Stock Consideration will be made as follows:
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration, and, subject to Section 2.03 hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in this Section 4.02 respect of that number of Stock Election Shares held by such holder equal to the contraryproduct obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the Exchange Agent maynumerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder’s Stock Election Shares being converted into the right to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and the Cash Election Shares shall be treated in the following manner:
(A) if the Shortfall Number is less than or equal to the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.03 hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration, and, subject to Section 2.03 hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
(d) It is intended that the Merger and the Bank Merger shall together constitute a reorganization within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute a “plan of reorganization” as that term is used in Sections 354 and 361 of the Code. From and after the date of this Agreement and until the Closing, each party hereto shall use its reasonable best efforts to cause the Merger to qualify as a reorganization under Section 368(a) of the Code. If the tax opinions referred to in Section 6.01(e) cannot be rendered (as reasonably determined by ▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, respectively) as a result of the Merger potentially failing to qualify as a reorganization under Section 368(a) of the Code, then Buyer may, in its sole discretion, increase the number of shares of Company Common Stock entitled to receive the Stock Consideration by the minimum amount necessary or desirable to administer enable such Electionstax opinions to be rendered.
Appears in 2 contracts
Sources: Merger Agreement (Independent Bank Corp), Merger Agreement (Central Bancorp Inc /Ma/)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub ETP shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed no less than thirty (30) days prior to holders the anticipated Closing Date or on such other date as ETP and the Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York such holder’s Company Class C Common Stock with respect to which such holder makes a Mixed Election; (and, upon completion ii) the number of the Parent Exchange, Parent LP Units) for all shares of the Eligible Company Shares held by such holder’s Company Common Stock with respect to which such holder makes a Cash Election; and (iii) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Common Unit Election. The holders of any Eligible Company Any Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business twentieth (20th) day immediately preceding following the Mailing Date (or such other time and date of as ETP and the Company Shareholders Meeting shall agree) (the “Election Deadline”) (other than Cancelled Shares and Subsidiary Shares or any shares of Company Common Stock that constitute Dissenting Shares at such time) shall be deemed not to be “No Election Shares,” and the holders of such No Election Shares shall be deemed to have made an Electiona Mixed Election with respect to such No Election Shares.
(c) BEPC and Acquisition Sub ETP shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. After a Mixed Election, Cash Election or a Common Unit Election is validly made with respect to any shares of Company Common Stock, any subsequent transfer of such shares of Company Common Stock shall automatically revoke such election. Any Election Form may be revoked or changed by the person submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall be deemed become No Election Shares, except to have made no Election, unless the extent a subsequent Election election is submitted by the holder properly made with respect to any or all of such Eligible shares of Company Shares in accordance with the procedures set forth in the Election Form Common Stock prior to the Election Deadline.
(e) Any . Subject to the terms of this Agreement and of the Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good-faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of ParentETP, BEPC, Acquisition Sub the Company or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Energy Transfer Partners, L.P.)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed together with the Proxy Statement or at such other time as the Company and Parent may agree (the “Mailing Date”) to holders each holder of record of Company Common Stock of record as of the close of business on the record date for notice of the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Special Meeting (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Houston time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and Parent shall agree) (the “Election Deadline”) (other than any shares of Company Common Stock that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe “No Election Shares.”
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the Certificates representing Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form, except to the Election Deadline.
extent (eif any) Any Election shall have been a subsequent election is properly made only if (i) with respect to any or all of the applicable shares of Company Common Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub Purchaser or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form.
(e) Within ten Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in which case as soon after the Effective Time as practicable (and in no event more than ten Business Days after the Effective Time), Parent shall cause the Exchange Agent to effect the allocation among the holders of Company Common Stock of rights to receive Parent Common Stock or cash in the Merger in accordance with the Election Forms as follows:
(i) Cash Election Shares More Than Total Cash Amount. If the aggregate cash amount that would be paid upon the conversion of the Cash Election Shares in the Merger is greater than the Total Cash Amount, then:
(1) all Stock Election Shares and No Election Shares shall be converted into the right to receive the Per Share Stock Consideration,
(2) the Exchange Agent shall then select from among the Cash Election Shares, by a pro rata selection process, a sufficient number of shares (“Stock Designated Shares”) such that the aggregate cash amount that will be paid in the Merger equals as closely as practicable the Total Cash Amount, and all Stock Designated Shares shall be converted into the right to receive the Per Share Stock Consideration, and
(3) the Cash Election Shares that are not Stock Designated Shares will be converted into the right to receive the Per Share Cash Consideration.
(ii) Cash Election Shares Less Than Total Cash Amount. If the aggregate cash amount that would be paid upon conversion of the Cash Election Shares in the Merger is less than the Total Cash Amount, then:
(1) all Cash Election Shares shall be converted into the right to receive the Per Share Cash Consideration,
(2) the Exchange Agent shall then select first from among the No Election Shares and then (if necessary) from among the Stock Election Shares, by a pro rata selection process, a sufficient number of shares (“Cash Designated Shares”) such that the aggregate cash amount that will be paid in the Merger equals as closely as practicable the Total Cash Amount, and all Cash Designated Shares shall be converted into the right to receive the Per Share Cash Consideration, and
(3) the Stock Election Shares and the No Election shares that are not Cash Designated Shares shall be converted into the right to receive the Per Share Stock Consideration.
(iii) Cash Election Shares Equal to Total Cash Amount. If the aggregate cash amount that would be paid upon conversion of the Cash Election Shares in the Merger is equal to the Total Cash Amount, then subparagraphs (i) and (ii) above shall not apply and all Cash Election Shares shall be converted into the right to receive the Per Share Cash Consideration and all Stock Election Shares and No Election Shares shall be converted into the right to receive the Per Share Stock Consideration. Notwithstanding anything in this Section 4.02 Agreement to the contrary, for purposes of determining the allocations set forth in this Section 1.7(e), Parent shall have the right, but not the obligation, to require that any shares of Company Common Stock that constitute Dissenting Shares as of the Election Deadline be treated as Cash Election Shares, although no such shares shall be subject to any of the pro rata selection processes contemplated by this Section 1.7(e).
(f) The pro rata selection process to be used by the Exchange Agent may, with the written agreement shall consist of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections such equitable pro ration processes as shall be necessary or desirable to administer such Electionsmutually determined by Parent and the Company.
Appears in 2 contracts
Sources: Merger Agreement (Mission Resources Corp), Merger Agreement (Petrohawk Energy Corp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Parent and Acquisition Sub Company shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall be mailed thirty-five (35) days prior to holders the anticipated Closing Date or on such other date as Parent and Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the each holder of Company Common Stock (or the beneficial owner through appropriate and customary documentation and instructions) other than holders of record Dissenting Shares to specify (i) the number of Eligible shares of such holder’s Company Shares as Common Stock with respect to which such holder desires to make a Stock Election (“Stock Election Shares”), (ii) the number of immediately prior shares of such holder’s Company Common Stock with respect to the which such holder desires to make a Cash Election Deadline to elect (an “ElectionCash Election Shares”) to receive or (iii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder makes no election (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York City time, on the business 30th day immediately preceding following the Mailing Date (or such other time and date of the as Parent and Company Shareholders Meeting may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe No Election Shares.
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons any person who become holders becomes a holder (or beneficial ownersowner) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Old Certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all certificated shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder Exchange Agent by the Election Deadline, the shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the Old Certificates to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the Election Deadline.
(e) Any Election shall have been properly made only if (i) holder who submitted the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.Election
Appears in 2 contracts
Sources: Merger Agreement (Royal Bank of Canada), Merger Agreement (City National Corp)
Election Procedures. Each holder of record of shares of Target Common Stock (“Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures:
(a) Each Holder may specify in a request made in accordance with the provisions of this Section 2.1 (each, an “Election”) (i) the number of shares of Target Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (ii) the number of shares of Target Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(b) Before the Effective Time, Buyer shall appoint First-Citizens Bank & Trust Company, pursuant to an agreement (the “Exchange Agent Agreement”), to act as exchange agent (the “Exchange Agent”) hereunder. An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effectedmaterials, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Target and Acquisition Sub Buyer shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) ), shall be mailed no more than 40 business days and no less than 20 business days before the anticipated Effective Time or on such earlier date as Target and Buyer shall mutually agree (the “Mailing Date”) to holders of Company Common Stock of record each Holder as of five business days before the record date for Mailing Date (the Company Shareholders Meeting“Election Form Record Date”). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior such Holder, subject to the Election Deadline allocation and election procedures set forth in this Section 2.1, to (i) elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) Cash Consideration for all of the Eligible Company Shares shares of Target Common Stock held by such holderHolder in accordance with Section 1.4(c), (ii) elect to receive the Stock Consideration for all of such shares in accordance with Section 1.4(c), (iii) elect to receive the Stock Consideration for a part of such Holder’s Target Common Stock and the Cash Consideration for the remaining part of such Holder’s Target Common Stock or (iv) indicate that such Holder has no preference as to the receipt of cash or Buyer Common Stock for such shares (a “Non-Election”). The holders A Holder who holds such shares as nominee, trustee or in another representative capacity (a “Representative”) may submit multiple Election Forms, provided that each such Election Form covers all of any Eligible Company Shares the shares of Target Common Stock held by such Representative for a particular beneficial owner. Any shares of Target Common Stock with respect to which the Holder thereof has not, as of the Election Deadline, made an election by submission to the Exchange Agent has not received of an effective, properly completed Election Form shall be deemed Non-Election Shares.
(c) To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York Charlotte, North Carolina time, on the business 25th day immediately preceding after the Mailing Date (or such other time and date of as Buyer and Target may mutually agree as set forth in the Company Shareholders Meeting Election Form) (the “Election Deadline”) shall be deemed ); provided, however, that the Election Deadline may not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one occur before the 25th day following the Mailing Date or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on after the business day prior before the Closing Date. Buyer shall use all reasonable efforts to make available as promptly as possible an Election Form to any Holder who requests such Election Form following the initial mailing of the Election Forms and before the Election Deadline, and the Company . Target shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any An Election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. If a Holder either (i) does not submit a properly completed Election Form in a timely fashion or (ii) such revokes its Election has been made at or prior to Form before the Election Deadline pursuant to the procedures set forth in (without later submitting a properly completed Election Form before the Election Form. After an Election is validly made with respect to any Eligible Company SharesDeadline), no further registration the shares of transfers of Target Common Stock held by such Eligible Company Shares Holder shall be made on the transfer books of the Company unless and until such designated as Non-Election is properly revoked in accordance with the procedures set forth in the Shares. Any Holder may revoke or change his or her Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of written notice to the Exchange Agent shall be conclusive and binding as to whether only if such notice of revocation or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were change is actually received by the Exchange Agent at or before the Election Deadline. Subject to the terms of this Agreement and as to whether to disregard immaterial defects in a completed of the Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under have discretion to determine when any obligation to notify Election, modification or revocation is received and whether any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrarysuch Election, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules modification or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionshas been properly made.
Appears in 2 contracts
Sources: Merger Agreement (Community Capital Corp /Sc/), Merger Agreement (Park Sterling Corp)
Election Procedures. Each holder of record of shares of Company Common Stock (a“Holder”) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effectedhave the right, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates subject to the Exchange Agentlimitations set forth in this Article I, to submit an election in accordance with the following procedures:
(i) Each Holder may specify in a request made in accordance with the provisions of this Section 1.9 (herein called an “Election”) (i) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Convertible Notes Election and (ii) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(ii) Parent shall prepare a form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election FormForm of Election”) which shall be mailed to holders of Company Common Stock of record Holders so as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) exercise of record of Eligible Company Shares as of immediately prior their right to the make an Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and . Parent shall make the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
Form of Election initially available not less than twenty (d20) Any Election Form may be revoked Business Days prior to the anticipated Election Deadline with respect and shall use its commercially reasonable efforts to make available as promptly as possible a Form of Election to any Holder who requests such Form of Election following the Eligible Company Shares subject thereto in accordance with initial mailing of the procedures set forth therein. If an Forms of Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form and prior to the Election Deadline.
(eiii) Any Election shall have been made properly made only if the person authorized to receive Elections and to act as exchange agent under this Agreement, which person or persons shall be a bank or trust company selected by Parent with the consent of the Company, such consent not to be unreasonably withheld (i) the “Exchange Agent”), pursuant to an agreement substantially in the form of Exhibit A hereto (the “Exchange Agent Agreement”) entered into prior to the mailing of the Form of Election to Holders, shall have received a properly completed Election Form received, by the Election Deadline or (ii) such Deadline, a Form of Election has been made at or prior properly completed and signed. As used herein, unless otherwise agreed in advance by the parties, “Election Deadline” shall mean 5:00 p.m. New York City time on the date of the Company Stockholders’ Meeting. Parent and the Company shall cooperate to issue a press release reasonably satisfactory to each of them announcing the date of the Election Deadline pursuant to the procedures set forth in not more than fifteen (15) Business Days before, and at least five (5) Business Days prior to, the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipDeadline.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Medicinova Inc), Merger Agreement (Avigen Inc \De)
Election Procedures. Each holder of record of Company Common Shares (other than Excluded Shares) issued and outstanding at the close of business on the record date for the Company Shareholders Meeting (the “Company Record Date”) and each holder of Company Compensatory Awards on the Company Record Date shall have the right, subject to the limitations set forth in this Section 2.6 and the other provisions of Article 2, to submit an Election prior to the Election Deadline in accordance with the following procedures:
(a) An Concurrently with the mailing of the Joint Proxy Statement (the “Mailing Date”), the Company shall cause an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be is reasonably acceptable to Parent and the Company Exchange Agent (the “Election Form”) (and which shall comply with this Section 2.6) to be mailed to the holders of Company Common Stock of record as of the record date for Shares (other than Excluded Shares) and Company Compensatory Awards on the Company Shareholders MeetingRecord Date. As used herein, shares Parent shall cause the Exchange Agent to make available one or more Election Forms as may reasonably be requested from time to time by any Person who is a record holder of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred Shares (other than Excluded Shares) on the Company Record Date. Holders of record of Company Common Shares (other than Excluded Shares) or holders of Company Compensatory Awards on the Company Record Date who hold such Company Common Shares as nominees, trustees or in other representative capacities may submit a separate Election Form before the Election Deadline with respect to as “Eligible each beneficial owner for whom such nominee, trustee or representative holds such Company Common Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record Company Common Shares (other than Excluded Shares) and the holder of Eligible Company Compensatory Awards to specify the number of such holder’s Company Common Shares as of immediately prior (including the Company Common Shares that become or are considered to the Election Deadline be outstanding pursuant to elect Section 2.10) with respect to which such holder elects to receive (an “Election”): (i) the Cash Consideration (a “Cash Election” and such Company Common Shares (including the Company Common Shares that become or are considered to receive shares be outstanding pursuant to Section 2.10) that are the subject of New York a Cash Election being referred to as “Cash Election Shares”); or (ii) the Common Share Consideration (a “Share Election” and such Company Class C Common Stock Shares (andincluding the Company Common Shares that become or are considered to be outstanding pursuant to Section 2.10) subject to a Share Election being referred to as “Share Election Shares”); provided, upon completion of the Parent Exchangehowever, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares that an Election Form with respect to which any Company Common Shares that become or are considered to be outstanding immediately prior to the Company Merger Effective Time pursuant to Section 2.10 may specify the percentage instead of the number of such holder’s Company Common Shares that shall be Cash Election Shares and Share Election Shares. Each Election shall be subject to this Section 2.6 and Section 2.7. For the avoidance of doubt, the sum of the number of Cash Election Shares and the number of Share Election Shares must be equal to the number of Company Common Shares (including the Company Common Shares that become or are considered to be outstanding pursuant to Section 2.10) held by the holder completing such Election Form.
(c) Any Election made pursuant to this Section 2.6 will have been properly made only if the Exchange Agent has not will have actually received an effective, properly completed Election Form on or before by 5:00 p.m., New York time, on the business day Business Day immediately preceding the date of prior to the Company Shareholders Meeting (the “Election Deadline”) ), a properly completed Election Form, in the case of an Election in respect of any Company Common Shares evidenced by a certificate, together with the applicable certificate, and in the case of an Election in respect of any Company Common Shares that are in book-entry form, the holders shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more followed the instructions set forth in the Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) Form. None of Eligible Company Shares between the record date for Parent, the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to or the Exchange Agent all information reasonably necessary for it or any of their respective Affiliates will be under any obligation to perform as specified hereinnotify any Person of any defect in an Election Form.
(d) Each Company Common Share (including the Company Common Shares that become or are considered to be outstanding pursuant to Section 2.10) eligible to receive the Merger Consideration pursuant to Section 2.5(a) for which an Election is not properly made by the Election Deadline shall be deemed to have made a Share Election and shall only be entitled to receive the Common Share Consideration in accordance with Section 2.5(a). The Exchange Agent shall, in its sole discretion, resolve any ambiguities about or in connection with any Election Form in favor of deeming that only a Share Election has been made. Subject to the provisions of the Exchange Agent Agreement, the Exchange Agent also shall make all computations as to the allocation and proration contemplated by Section 2.7, and absent manifest error any such computation shall be conclusive and binding on the holders of Company Common Shares (including the Company Common Shares that become or are considered to be outstanding pursuant to Section 2.10).
(e) Any Election Form may be revoked with respect to all or a portion of the Company Common Shares (including the Company Common Shares that become or are considered to be outstanding pursuant to Section 2.10) subject thereto by the holder who submitted the applicable Election Form by proper written notice received by the Exchange Agent prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth thereinDeadline. If an Election Form is revoked prior to the Election Deadlinerevoked, the holder of Eligible Company Common Shares represented by (including the Company Common Shares that become or are considered to be outstanding pursuant to Section 2.10) to which such Election Form related shall be deemed to have made no Election, a Share Election unless a subsequent new Election Form is subsequently submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Common Shares, no further registration of transfers any subsequent transfer of such Eligible Company Common Shares shall automatically revoke such Election. Notwithstanding anything to the contrary in this Agreement, all Elections shall be made on automatically deemed revoked upon receipt by the transfer books Exchange Agent of written notification from the Company unless and until such Election is properly revoked or Parent that this Agreement has been terminated in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipArticle 7.
(f) The reasonable good faith determination of Parent and the Exchange Agent Company shall publicly announce the anticipated Election Deadline at least three (3) Business Days prior to the anticipated Election Deadline. If the Company Shareholders Meeting is delayed to a subsequent date, the Election Deadline shall be conclusive similarly delayed to a subsequent date, and binding as to whether or not an Election Parent and the Company shall have been properly made or revoked pursuant to the Election Formpromptly announce any such delay and, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrarydetermined, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsrescheduled Election Deadline.
Appears in 2 contracts
Sources: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)
Election Procedures. (a) An Not less than thirty (30) days prior to the anticipated Effective Time (the “Mailing Date”), an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub CME Group shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock each holder of record of shares of NYMEX Holdings Common Securities as of five (5) Business Days prior to the record date for Mailing Date (the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner Beneficial Owner through appropriate and customary documentation and instructions), other than any holder of Dissenting NYMEX Holdings Shares, to specify (i) the number of record shares of Eligible Company Shares as such holder’s NYMEX Holdings Common Securities with respect to which such holder elects to receive the Per Share Stock Consideration (the “Stock Election Shares”), (ii) the number of immediately prior shares of such holder’s NYMEX Holdings Common Securities with respect to which such holder elects to receive the Per Share Cash Consideration (the “Cash Election Deadline to elect (an “ElectionShares”) or (iii) that such holder makes no election with respect to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder’s NYMEX Holdings Common Securities (the “No Election Shares”). The holders of any Eligible Company Shares Any NYMEX Holdings Common Securities with respect to which the Exchange Agent has does not received receive an effective, properly completed Election Form on or before 5:00 p.m., New York time, on during the business day immediately preceding the date Election Period (other than any shares of NYMEX Holdings Common Securities that constitute Dissenting NYMEX Holdings Shares as of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Electionbe No Election Shares. CME Group shall publicly announce the anticipated Election Deadline at least five (5) Business Days prior to the anticipated Effective Time. If the Effective Time is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and CME Group shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(c) BEPC and Acquisition Sub CME Group shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial ownersBeneficial Owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to NYMEX Holdings Common Securities during the Election DeadlinePeriod, and the Company NYMEX Holdings shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form during the Election Period. Any Election Form may be revoked or changed by the Election Deadline or (ii) Person submitting such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were by written notice received by the Exchange Agent during the Election Period. In the event an Election Form is revoked during the Election Period, the shares of NYMEX Holdings Common Securities represented by such Election Form shall become No Election Shares, except to the extent (if any) a subsequent election is properly made during the Election Period with respect to any or all of such shares of NYMEX Holdings Common Securities. Subject to the terms of this Agreement and as of the Election Form, the Exchange Agent shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub CME Group or NYMEX Holdings or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (Nymex Holdings Inc)
Election Procedures. (a) An At the time of mailing of the Proxy Statement/Prospectus to holders of record of Common Units entitled to vote at the Unitholder Meeting (such date, the “Mailing Date”), an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing Common Units, or Book-Entry Common Units, shall pass, only upon proper delivery of such Eligible Certificates or Book-Entry Common Units, respectively, to the Exchange Agent, upon adherence to the procedures set forth in the letter of transmittal) in such form as BEPC Parent and Acquisition Sub the Company shall reasonably specify and as shall be reasonably acceptable to the Company agree (the “Election Form”) shall be mailed to holders of Company Common Stock each holder of record of Common Units as of the record date for the Company Shareholders Unitholder Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) the number of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder’s Common Units with respect to which such holder makes a Cash Election, and (ii) the number of such holder’s Common Units with respect to which such holder elects to make a Mixed Election. The holders of any Eligible Company Shares Any Common Units with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding Business Day that is three (3) Business Days prior to the Closing Date (which date of shall be publicly announced by Parent as soon as reasonably practicable) (or such other time and date as the Company Shareholders Meeting and Parent shall agree in writing) (the “Election Deadline”) shall be deemed not to have made an Electionbe “Non-Electing Common Units.” If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent shall promptly announce any such delay and, when determined, the rescheduled Election Deadline, if any.
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms available as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Units between the record date for the Company Shareholders Unitholder Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified hereinherein and as specified in any agreement with the Exchange Agent.
(d) Any election made pursuant to this Section 2.2 shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form prior to the Election Deadline. An Election Form shall be deemed properly completed only (i) if accompanied by one or more Certificates representing Common Units duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such Certificates as set forth in such Election Form from a firm that is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act), and/or (ii) upon receipt of an “agent’s message” by the Exchange Agent or such other evidence of transfer of Book-Entry Common Units to the Exchange Agent as the Exchange Agent may reasonably request, collectively representing all Common Units covered by such Election Form, together with duly executed transmittal materials included with the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares Common Units represented by such Election Form shall become Non-Electing Common Units and Parent shall cause the Certificates representing such Common Units to be deemed promptly returned without charge to have made no Electionthe Person submitting the Election Form upon such revocation or written request to that effect from the holder who submitted the Election Form; provided, unless however, that a subsequent Election is submitted by the holder election may be made with respect to any or all of such Eligible Company Shares Common Units pursuant to this Section 2.2. In addition, all Cash Elections and Mixed Elections shall automatically be revoked and all Certificates representing Common Units shall be promptly returned without charge if this Agreement is terminated in accordance with the procedures set forth in the Election Form prior to the Election DeadlineArticle 8 of this Agreement.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior Subject to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration terms of transfers this Agreement and of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent Agent, in consultation with both Parent and as the Company, shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub Parent or the Company or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Kirby Corp), Agreement and Plan of Merger (K-Sea Transportation Partners Lp)
Election Procedures. 3.2.1. Holders of GLB Common Stock may elect to receive shares of FNFG Common Stock or cash (ain either case without interest) in exchange for their shares of GLB Common Stock in accordance with the procedures set forth herein; provided that, in the aggregate, and subject to the provisions of 3.2, 50% of the total number of shares of GLB Common Stock issued and outstanding at the Effective Time, including any Dissenting Shares but excluding any Treasury Shares (the “Stock Conversion Number”), shall be converted into the Stock Consideration and the remaining outstanding shares of GLB Common Stock shall be converted into the Cash Consideration. Shares of GLB Common Stock as to which a Cash Election (including, pursuant to a Mixed Election) has been made are referred to herein as “Cash Election Shares.” Shares of GLB Common Stock as to which a Stock Election has been made (including, pursuant to a Mixed Election) are referred to as “Stock Election Shares.” Shares of GLB Common Stock as to which no election has been made (or as to which an Election Form is not returned properly completed) are referred to herein as “Non-Election Shares.” The aggregate number of shares of GLB Common Stock with respect to which a Stock Election has been made is referred to herein as the “Stock Election Number.” Any Dissenting Shares shall be deemed to be Cash Election Shares, and the holders thereof shall in no event receive consideration comprised of FNFG Common Stock with respect to such shares; provided; however, that for purposes of making the proration calculations provided for in this Section 3.2, only Dissenting Shares as existing at the Effective Time shall be deemed Cash Election Shares.
3.2.2. An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) ), in such form as BEPC GLB and Acquisition Sub FNFG shall reasonably specify and as mutually agree (“Election Form”), shall be reasonably acceptable mailed no more than 40 business days and no less than 20 business days prior to the Company anticipated Effective Time or on such earlier date as FNFG and GLB shall mutually agree (the “Mailing Date”) to each holder of record of GLB Common Stock as of five business days prior to the Mailing Date (the “Election FormForm Record Date”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior such holder, subject to the Election Deadline allocation and election procedures set forth in this Section 3.2, (i) to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) Cash Consideration for all of the Eligible Company Shares shares of GLB Common Stock held by such holder, in accordance with Section 3.1.3, (ii) to elect to receive the Stock Consideration for all of such shares, in accordance with Section 3.1.3, (iii) elect to receive the Stock Consideration for a part of such holder’s GLB Common Stock and the Cash consideration for the remaining part of such holder’s GLB Common Stock, or (iv) to indicate that such record holder has no preference as to the receipt of cash or FNFG Common Stock for such shares. The holders A holder of any Eligible Company Shares record of shares of GLB Common Stock who holds such shares as nominee, trustee or in another representative capacity (a “Representative”) may submit multiple Election Forms, provided that each such Election Form covers all the shares of GLB Common Stock held by such Representative for a particular beneficial owner. Any shares of GLB Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made an election by submission to the Exchange Agent has not received of an effective, properly completed Election Form shall be deemed Non-Election Shares.
3.2.3. To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York City time, on the business 20th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as FNFG and GLB may mutually agree) (the “Election Deadline”) ); provided, however, that the Election Deadline may not occur on or after the Closing Date. GLB shall be deemed not use its reasonable best efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make available one up to two separate Election Forms, or more such additional Election Forms as FNFG may reasonably be requested from time permit, to time by all persons who become holders (or beneficial owners) of Eligible Company Shares GLB Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company . GLB shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of GLB Common Stock covered by such Election Form, together with duly executed transmittal materials included with the Election Form. If an GLB shareholder either (i) does not submit a properly completed Election Form in a timely fashion or (ii) revokes its Election Form prior to the Election Deadline (without later submitting a properly completed Election Form prior to the Election Deadline), the shares of GLB Common Stock held by such shareholder shall be designated as Non-Election Shares. Any Election Form may be revoked or changed by the person submitting such Election has been made Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or change is actually received by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. FNFG shall cause the Certificate or Certificates relating to any revoked Election Form to be promptly returned without charge to the procedures set forth in person submitting the Election Form to the Exchange Agent. Subject to the terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall have discretion to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made. All elections shall be conclusive and binding as revoked automatically if the Exchange Agent is notified in writing by FNFG or GLB, upon exercise by FNFG or GLB of its respective or their mutual rights to whether or not an Election terminate this Agreement to the extent provided under Article XI, that this Agreement has been terminated in accordance with Article XI.
3.2.4. If the aggregate number of shares of GLB Common Stock with respect to which Stock Elections shall have been properly made or revoked pursuant (the “Stock Election Number”) exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares of each holder thereof shall be converted into the right to receive the Cash Consideration, and Stock Election Shares of each holder thereof will be converted into the right to receive the Stock Consideration in respect of that number of Stock Election Shares equal to the product obtained by multiplying (x) the number of Stock Election Form, as to when Elections and revocations of Elections were received Shares held by the Exchange Agent and as to whether to disregard immaterial defects in such holder by (y) a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryfraction, the Exchange Agent maynumerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder’s Stock Election Shares being converted into the right to receive the Cash Consideration.
3.2.5. If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and Cash Election Shares shall be necessary treated in the following manner:
(A) If the Shortfall Number is less than or desirable equal to administer the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and the Non-Election Shares of each holder thereof shall convert into the right to receive the Stock Consideration in respect of that number of Non-Election Shares equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such Electionsholder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) If the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration and Cash Election Shares of each holder thereof shall convert into the right to receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Great Lakes Bancorp, Inc.), Merger Agreement (First Niagara Financial Group Inc)
Election Procedures. (a) An Not less than 20 days prior to the anticipated Effective Time (the "Mailing Date"), an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub CME shall reasonably specify and as shall be reasonably acceptable to the Company GFI (the “"Election Form”") shall be mailed to holders each holder of Company record of shares of GFI Common Stock of record as of five Business Days prior to the record date for Mailing Date (the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”"Election Form Record Date").
(b) Each Election Form shall permit the holder (or the beneficial owner Beneficial Owner through appropriate and customary documentation and instructions) to specify (i) the number of record shares of Eligible Company Shares as of immediately prior such holder's GFI Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration (the "Stock Election Shares"), (ii) the number of shares of New York Company Class C such holder's GFI Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (the "Cash Election Shares") or (iii) that such holder makes no election with respect to such holder's GFI Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder"No Election Shares"). The holders of any Eligible Company Shares Any GFI Common Stock with respect to which the Exchange Agent has does not received receive an effective, properly completed Election Form on or before 5:00 p.m., New York time, on during the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) Period shall be deemed not to have made an Electionbe No Election Shares. CME shall publicly announce (which public announcement may be on a Form 8-K filed with the SEC) the anticipated Election Deadline at least five Business Days prior to the anticipated Effective Time. If the Effective Time is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and CME shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(c) BEPC and Acquisition Sub CME shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial ownersBeneficial Owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to GFI Common Stock during the Election DeadlinePeriod, and the Company GFI shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form during the Election Period. Any Election Form may be revoked or changed by the Election Deadline or (ii) Person submitting such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were by written notice received by the Exchange Agent during the Election Period. In the event an Election Form is revoked during the Election Period, the shares of GFI Common Stock represented by such Election Form shall become No Election Shares, except to the extent (if any) a subsequent election is properly made during the Election Period with respect to any or all of such shares of GFI Common Stock. Subject to the terms of this Agreement and as of the Election Form, the Exchange Agent shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub CME or GFI or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
Election Procedures. (ai) An Not less than thirty (30) days prior to the anticipated Effective Time, an election form and other appropriate and customary transmittal materials (which shall specify that delivery of issued and outstanding Target Common Stock shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing any such Target Common Stock (each, a “Certificate”) or non-certificated shares represented by book entry (“Book Entry Shares”) shall pass, only upon proper delivery of such Eligible Certificates or Book Entry Shares, respectively, to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company Target (the “Election Form”) shall be mailed at such time as Target and Parent may agree (the “Mailing Date”) to each holder of record of shares of Target Common Stock (including to holders of Company Target Options and ESPP Rights electing prior to the Effective Time to purchase or receive Target Common Stock of record Stock), determined as of five (5) business days prior to the record date for Mailing Date (the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company SharesElection Form Record Date”).
(bii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Target Excluded Shares, to specify (i) the number of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C such holder’s Target Common Stock (andincluding shares issuable pursuant to any Target Option or ESPP Right) with respect to which such holder elects to receive the Per Share Cash Election Consideration, upon completion (ii) the number of the Parent Exchange, Parent LP Units) for all shares of the Eligible Company Shares held by such holder’s Target Common Stock with respect to which such holder elects to receive the Per Share Stock Election Consideration, or (iii) that such holder makes no election with respect to such holder’s Target Common Stock. The holders of any Eligible Company Shares Any Target Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business twentieth (20th) day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Target and Parent shall agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe Non-Election Shares.
(ciii) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all any persons who become holders (or beneficial owners) of Eligible Company Shares Target Common Stock, between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Target shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(div) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only (i) if, in the case of issued and outstanding shares of Target Common Stock, accompanied by one or more Certificates (or customary affidavits), if applicable, and/or (ii) upon receipt of an “agent’s message” by the Exchange Agent or such other evidence of transfer of Book Entry Shares to the Exchange Agent as the Exchange Agent may reasonably request, collectively representing all shares of Target Common Stock covered by such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth Form, together with duly executed transmittal materials included in the Election Form. After Any Election Form may be revoked or changed by the person submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline. In the event an Election Form is validly revoked prior to the Election Deadline, the shares of Target Common Stock represented by such Election Form shall become Non-Election Shares and, in the case of issued and outstanding shares of Target Common Stock, Parent shall cause the Certificates representing such shares of Target Common Stock or Book-Entry Shares to be promptly returned without charge to the person submitting the Election Form upon written request to that effect from the holder who submitted the Election Form, except to the extent (if any) a subsequent election is properly made with respect to any Eligible Company Shares, no further registration of transfers or all of such Eligible Company Shares shall be made on shares of Target Common Stock. Subject to the transfer books terms of the Company unless this Agreement and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent Agent, in consultation with Parent and as Target, shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub Target or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Geo Group Inc), Merger Agreement (Cornell Companies Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record together with the Form S-4 or at such other time as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred may agree (the “Mailing Date”) to as each Shareholder (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder Shareholder (or the beneficial owner through appropriate and customary documentation and instructions) to specify the aggregate percentage of record of Eligible Company such Shareholder’s Allocable Non-Escrowed Merger Consideration for which the Shareholder elects to receive Parent Shares as of immediately prior (the “Stock Election Percentage”). A Shareholder shall be deemed to the Election Deadline to elect have made no election (an a “Non-Election”) with respect to receive shares any portion of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Shareholder’s Allocable Non-Escrowed Merger Consideration with respect to which the Exchange Agent Parent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding twentieth Business Day following the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting shall agree (the “Election Deadline”) shall be deemed not to have made an Election).
(c) BEPC and Acquisition Sub Any such election shall make available have been properly made only if Parent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Election Forms as may reasonably be requested from time to time by all persons who become holders certificates (or beneficial ownerscustomary affidavits and, if required by Parent or the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate) of Eligible representing all Company Common Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to (“Certificates”) covered by such Election Form, together with duly executed transmittal materials included in the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Form. Any Election Form may be revoked or changed by the Person submitting such Election Form, by written notice received by Parent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder portion of Eligible Company Shares such Shareholder’s Allocable Non-Escrowed Merger Consideration represented by such Election Form shall be deemed to have made no Electionbe a Non-Election and Parent shall cause the Certificates representing such portion of such Shareholder’s Allocable Non-Escrowed Merger Consideration, unless if any, to be promptly returned without charge to the Person submitting the Election Form upon written request to that effect from the holder who submitted the Election Form, except to the extent (if any) a subsequent election is properly made with respect to any or all of such Company Common Shares. Subject to the terms of this Agreement and of the Election is submitted Form, Parent shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in the Election Forms, and any good faith decisions of Parent regarding such matters shall be binding and conclusive. With respect to any Election Form received by the holder Parent no later than three (3) Business Days prior to the Election Deadline, the Company and Parent shall exercise reasonable diligence to notify any Person of any defect in such Eligible Company Shares in accordance with the procedures set forth Election Form, and each such Person shall be permitted to correct any such defect or defects in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Fortune Brands Inc), Merger Agreement (Fortune Brands Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates certificates to the Exchange AgentAgent (as defined below)) in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company shall mutually agree (the “Election Form”) shall be mailed 35 days prior to holders the anticipated Effective Date or on such other date as the Company and Parent shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe “No Election Shares.”
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the certificates representing such Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Parent nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within ten business days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to the contrarywhich case as soon thereafter as practicable, Parent shall cause the Exchange Agent may, to effect the allocation among the holders of Company Common Stock of rights to receive Parent Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (Susquehanna Bancshares Inc), Agreement and Plan of Merger (Susquehanna Bancshares Inc)
Election Procedures. (a) An election form OLB and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk Holdings will include a copy of loss and title to Eligible Certificates shall pass, only upon proper delivery an Election Form with each copy of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be Prospectus/Proxy Statement mailed to holders of Company Holdings Common Stock in connection with the Holdings Common Stockholders’ Meeting, pursuant to which Holdings Common Stockholders will:
(i) Elect to receive the Per Share Common Stock Consideration with respect to all or a portion of record as of the record date for the Company Shareholders Meeting. As used herein, their shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Holdings Common Stock (and, upon completion of the Parent Exchange, Parent LP Units“Common Stock Election Shares”); or
(ii) for all of Elect to receive the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Per Share Cash Consideration with respect to which the Exchange Agent has not received an effective, properly completed Election Form on all or before 5:00 p.m., New York time, on the business day immediately preceding the date a portion of the Company Shareholders Meeting their shares of Holdings Common Stock (the “Cash Election DeadlineShares”) ). OLB and Holdings shall be deemed not each use their reasonable efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make the Election Form available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Holdings Common Stock during the period between the record date for the Company Shareholders Holdings Common Stockholders’ Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Holdings Common Stockholder’s Election shall have been properly made only if (i) the Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by the Holdings Certificate(s) to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such Holdings Certificate(s) as set forth in such Election Form from a firm which is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act) provided that such Holdings Certificate(s) are in fact delivered to the Exchange Agent by the time set forth in such guarantee of delivery). If a holder of Holdings Common Stock (i) does not submit a properly completed Election Form by before the Election Deadline or Deadline, (ii) such revokes an Election has been made at or Form prior to the Election Deadline and does not resubmit a properly completed Election Form prior to the Election Deadline, or (iii) otherwise fails to make an Election pursuant to Section 2.8(b) of this Agreement, then the procedures set forth in shares of Holdings Common Stock held by such holder shall be designated “No-Election Shares.” Nominee record holders who hold Holdings Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Common Stock Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration Cash Election Shares and No-Election Shares. For purposes of transfers of such Eligible Company this Section 2.5, any Objecting Holdings Shares shall be made on the transfer books of the Company unless and until such deemed to have elected Cash Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (WSB Holdings Inc), Merger Agreement (Old Line Bancshares Inc)
Election Procedures. (ai) An HNC and East Penn Financial shall cause the Exchange Agent to mail an election form and other appropriate and customary transmittal materials (materials, which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing East Penn Financial Shares shall pass, only upon proper delivery of such Eligible Certificates certificates to the Exchange Agent) Agent in such form as BEPC HNC and Acquisition Sub East Penn Financial shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the an “Election Form”) shall be mailed to holders of Company East Penn Financial Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding East Penn Financial Options not more than forty (40) Business Days and not held by any Parent Stockholder less than twenty (20) Business Days prior to a date and time (the “Election Deadline”) that shall be referred mutually agreeable to HNC and East Penn Financial, but in any event not less than six (6) Business Days prior to the Closing Date, and shall be designated in the Election Form as “Eligible Company Shares”.
(b) the deadline for delivery of such holders’ elections. Each Election Form shall permit the holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation documentation) to make a Stock Election, a Cash Election or a Mixed Election. The East Penn Financial Shares for which the holder has duly made a Mixed Election shall be entitled to receive that respective proportion of Stock Consideration and instructions) of record of Eligible Company Shares Cash Consideration as of immediately prior shall be determined pursuant to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (andallocation rules set forth in Section 2.4(e), upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) and shall be deemed not to have made an Electionhold Stock Election Shares and Cash Election Shares in corresponding amounts.
(cii) BEPC and Acquisition Sub The Exchange Agent shall use reasonable efforts to make the Election Form available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares East Penn Financial Common Stock during the period between the record date for the Company Shareholders Meeting mailing of the Election Form (the “Record Date”) and the close of business on Election Deadline. Any holder's election shall have been properly made only if the business day prior to Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by the Company shall provide East Penn Financial Certificates to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such East Penn Financial Certificates as set forth in such Election Form from a firm which is an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the Exchange Act) provided that such East Penn Financial Certificates are in fact delivered to the Exchange Agent all information reasonably necessary for it to perform as specified hereinby the time set forth in such guarantee of delivery).
(diii) Any If, as to any East Penn Financial Common Stock, the holder either: (i) does not submit a properly completed Election Form may be revoked before the Election Deadline; (ii) revokes an Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless and does not resubmit a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline ; or (iiiii) such Election has been made at fails to perfect his, her or prior to the Election Deadline its dissenters' rights pursuant to subsection 2.7 of this Agreement, those shares of East Penn Financial Common Stock shall be designated "No-Election Shares." Nominee record holders who hold East Penn Financial Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the procedures set forth in the shares held by them are Stock Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Cash Election Shares shall be made on the transfer books of the Company unless and until such No-Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipand how many shares held by them are subject to a Mixed Election.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Harleysville National Corp), Merger Agreement (East Penn Financial Corp)
Election Procedures. Each holder of record of shares of National Penn Common Stock, National Penn Restricted Stock Awards, National Penn Restricted Stock Unit Awards or Settled Deferred Stock Unit Awards to be converted into the right to receive the Cash Consideration and/or the Stock Consideration in accordance with, and subject to, Sections 1.6(a) and 2.1 (a “Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures:
(a) An election Each Holder may specify in a request made in accordance with the provisions of this Section 2.2 (herein called an “Election”) (i) the number of shares of National Penn Common Stock owned by such Holder (or subject to such National Penn Restricted Stock Awards, National Penn Restricted Stock Unit Awards or Settled Deferred Stock Unit Awards) with respect to which such Holder desires to make a Stock Election and (ii) the number of shares of National Penn Common Stock owned by such Holder (or subject to such National Penn Restricted Stock Awards, National Penn Restricted Stock Unit Awards or Settled Deferred Stock Unit Awards) with respect to which such Holder desires to make a Cash Election.
(b) Parent shall prepare a form and other reasonably acceptable to National Penn, including appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC prepared by Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company National Penn (the “Election Form”) shall be mailed to holders Form of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) ), so as to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect permit Holders to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not exercise their right to have made make an Election.
(c) BEPC and Acquisition Sub Parent (i) shall initially make available one or more and mail the Form of Election Forms not less than twenty (20) business days prior to the anticipated Election Deadline to Holders of record as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to such mailing date, and (ii) following such mailing date, shall use all reasonable efforts to make available as promptly as possible a Form of Election to any stockholder, holder of National Penn Restricted Stock Awards, holder of National Penn Restricted Stock Unit Awards or holder of Settled Deferred Stock Unit Awards who requests such Form of Election prior to the Election Deadline, . The time period between such mailing date and the Company shall provide Election Deadline is referred to herein as the Exchange Agent all information reasonably necessary for it to perform as specified herein“Election Period”.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been made properly made only if (i) the Exchange Agent shall have received received, during the Election Period, a Form of Election properly completed and signed (including duly executed transmittal materials included in the Form of Election) and accompanied by any Old Certificates representing all certificated shares to which such Form of Election Form relates or by the Election Deadline or (ii) an appropriate customary guarantee of delivery of such Election has been made at or prior to the Election Deadline pursuant to the procedures Old Certificates, as set forth in the Election Form. After an Election is validly made with respect to such Form of Election, from a member of any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth registered national securities exchange or a commercial bank or trust company in the United States. As used herein, unless otherwise agreed in advance by the parties, “Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked Deadline” means 5:00 p.m. local time (in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination city in which the principal office of the Exchange Agent is located) on the date which the parties shall be conclusive and binding agree is as near as practicable to whether or not an Election two (2) business days preceding the Closing Date. The Parties shall have been properly made or revoked pursuant cooperate to issue a press release reasonably satisfactory to each of them announcing the date of the Election FormDeadline not more than fifteen (15) business days before, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryat least five (5) business days prior to, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsElection Deadline.
Appears in 2 contracts
Sources: Merger Agreement (Bb&t Corp), Merger Agreement (National Penn Bancshares Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon the later to occur of the proper delivery of such Eligible Certificates to a bank or trust company designated by Buyer and reasonably satisfactory to Seller (the “Exchange Agent”) and the Effective Time) in such form as BEPC Seller and Acquisition Sub Buyer shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) ), shall be mailed on a date (the “Mailing Date”) no more than 40 and no fewer than 20 business days prior to holders of Company Common Stock the anticipated Election Deadline to each holder of record as of the record date for the Company Shareholders MeetingSeller Common Stock. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder of record of Seller Common Stock (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation) to (i) elect to receive the Cash Consideration for all or a specified portion of record such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a specified portion of Eligible Company Shares as of immediately prior such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the Election Deadline to elect receipt of the Cash Consideration or the Stock Consideration (an a “ElectionNonelection”) to receive ); provided, that, notwithstanding any other provision of this Agreement, the aggregate Stock Consideration shall equal 939,372 shares of New York Company Class C Buyer Common Stock (and, upon completion the “Stock Conversion Number”). A record holder acting in different capacities or acting on behalf of the Parent Exchange, Parent LP Unitsother persons in any way will be entitled to submit an Election Form for each capacity in which such record holder so acts with respect to each Person for which it so acts. Shares of Seller Common Stock as to which a Cash Election has been made are referred to herein as “Cash Election Shares.” Shares of Seller Common Stock as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares of Seller Common Stock as to which no election has been made (or as to which an Election Form is not properly completed and returned in a timely fashion) for all are referred to herein as “Nonelection Shares.” The aggregate number of the Eligible Company Shares held by such holder. The holders shares of any Eligible Company Shares Seller Common Stock with respect to which a Stock Election has been made is referred to herein as the Exchange Agent has not received an “Stock Election Number.”
(b) To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York City local time, on a date no later than the fifth business day immediately preceding after the Closing Date (which date of the Company Shareholders Meeting shall be publicly announced by Buyer as early as practicable prior to such date) (the “Election Deadline”) ), accompanied by the Certificates as to which such Election Form is being made, by customary affidavits and indemnification regarding the loss or destruction of such Certificates or by an appropriate guarantee of delivery of such Certificates, as set forth in the Election Form, from a member of any registered national securities exchange or a commercial bank or trust company in the United States (provided, that such Certificates are in fact delivered to the Exchange Agent by the time required in such guarantee of delivery; failure to deliver shares of Seller Common Stock covered by such guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made election, unless otherwise determined by Buyer, in its sole discretion). For shares of Seller Common Stock held in book-entry form, Buyer shall establish procedures for delivery of such shares, which procedures shall be reasonably acceptable to Seller. If a holder of Seller Common Stock either (i) does not submit a properly completed Election Form in a timely fashion with respect to have made an Election.
any of such holder’s shares of Seller Common Stock or (cii) BEPC and Acquisition Sub shall make available one or more revokes the holder’s Election Forms as may reasonably be requested from time Form with respect to time by all persons who become holders (or beneficial owners) any of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close such holder’s shares of business on the business day Seller Common Stock prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
Deadline (d) Any without later submitting a properly completed Election Form may be revoked prior to the Election Deadline with respect to such shares), such shares of Seller Common Stock held by such holder shall be designated Nonelection Shares. In addition, all Election Forms shall automatically be revoked, and all Certificates promptly returned by the Eligible Company Shares subject thereto Exchange Agent, if the Exchange Agent is notified in accordance with the procedures set forth thereinwriting by Buyer and Seller that this Agreement has been terminated. If an Election Form is revoked prior Subject to the Election Deadline, the holder terms of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder this Agreement and of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(c) The allocation among the holders of shares of Seller Common Stock of rights to receive the Cash Consideration and the Stock Consideration will be made as follows:
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Nonelection Shares shall be converted into the right to receive the Cash Consideration, and each holder of Stock Election Shares will be entitled to receive the Stock Consideration in this Section 4.02 respect of that number of Stock Election Shares held by such holder equal to the contraryproduct obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the Exchange Agent maynumerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder’s Stock Election Shares being converted into the right to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Nonelection Shares and the Cash Election Shares shall be necessary treated in the following manner:
(A) if the Shortfall Number is less than or desirable equal to administer the number of Nonelection Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and each holder of Nonelection Shares shall receive the Stock Consideration in respect of that number of Nonelection Shares held by such Electionsholder equal to the product obtained by multiplying (x) the number of Nonelection Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Nonelection Shares, with the remaining number of such holder’s Nonelection Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Nonelection Shares, then all Nonelection Shares shall be converted into the right to receive the Stock Consideration, and each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Nonelection Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 2 contracts
Sources: Merger Agreement (SCBT Financial Corp), Merger Agreement (TSB Financial CORP)
Election Procedures. (a1) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Zions and Acquisition Sub Amegy shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall be mailed thirty-five days prior to holders the anticipated Closing Date or on such other date as Amegy and Zions shall mutually agree (the “Mailing Date”) to each holder of Company record of Amegy Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b2) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (A) the number of record shares of Eligible Company Shares as such holder’s Amegy Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (B) the number of immediately prior shares of such holder’s Amegy Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Deadline to elect (an “ElectionShares”) or (C) that such holder makes no election with respect to receive shares of New York Company Class C such holder’s Amegy Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder“No Election Shares”). The holders of any Eligible Company Shares Any Amegy Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 30th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Zions and Amegy may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe No Election Shares.
(c3) BEPC and Acquisition Sub Zions shall make available one or more Election Forms as may reasonably be requested from time to time by all persons any person who become holders becomes a holder (or beneficial ownersowner) of Eligible Company Shares Amegy Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Amegy shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d4) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Old Certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of Amegy Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form, only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder Exchange Agent by the Election Deadline, the shares of Eligible Company Shares Amegy Common Stock represented by such Election Form shall become No Election Shares and Zions shall cause the Old Certificates to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of Zions regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Zions nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to .
(5) Within ten business days after the contraryEffective Time, Zions shall cause the Exchange Agent may, to effect the allocation among the holders of Amegy Common Stock of rights to receive Zions Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (Amegy Bancorporation, Inc.), Merger Agreement (Zions Bancorporation /Ut/)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed and pursuant to holders of Company Common Stock which each holder of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder as of the close of business on the Election Form Record Date may make an election pursuant to this Section 1.7 shall be referred mailed together with the Proxy Statement or at such other time as the Company and Parent may agree (the “Mailing Date”) to each holder of record of Company Common Stock as of the close of business on the record date for notice of the Company Special Meeting (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and Parent shall agree) (the “Election Deadline”) (other than any shares of Company Common Stock that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe “No Election Shares.”
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. With respect to shares of Company Common Stock represented by a Certificate, an Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all certificated shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the Certificates, if any, representing Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form, except to the Election Deadline.
extent (eif any) Any Election shall have been a subsequent election is properly made only if (i) with respect to any or all of the applicable shares of Company Common Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPCMerger Sub I, Acquisition Merger Sub II or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within five Business Days after the Election Deadline, unless the Merger I Effective Time has not yet occurred, in this Section 4.02 to which case as soon after the contraryMerger I Effective Time as practicable (and in no event more than five Business Days after the Merger I Effective Time), Parent shall cause the Exchange Agent may, to effect the allocation among the holders of Company Common Stock of rights to receive Parent Depositary Shares or cash pursuant to the First Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (General Geophysics Co), Merger Agreement (Veritas DGC Inc)
Election Procedures. (a) An A Letter of Transmittal, an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company shall mutually agree (the “Election Form”) shall be mailed thirty-five (35) days prior to holders the anticipated Closing Date or on such other date as Parent and the Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth (5th) Business Day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) the number of record shares of Eligible such holder’s Company Shares as Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (the “Stock Election Shares”), (ii) the number of immediately prior shares of such holder’s Company Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (the “Cash Election Deadline to elect (an “ElectionShares”) and (iii) the number of shares of such holder’s Company Common Stock with respect to which such holder makes no election to receive shares of New York the Per Share Stock Consideration or the Per Share Cash Consideration (the “No Election Shares”). Any Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Unitsother than Dissenting Shares) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York City time, on the business thirtieth (30th) day immediately preceding following the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting may mutually agree) (the “Election Deadline”) shall be deemed not to have made an Electionbe No Election Shares.
(c) BEPC and Acquisition Sub The Company shall make available one or more Election Forms as may reasonably be requested from time to time by all persons any person who become holders becomes a holder (or beneficial ownersowner) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials (including a Letter of Transmittal) included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder Exchange Agent by the Election Deadline, the shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and the Company shall cause the applicable Certificates to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Company or the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub the Company or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. .
(e) Notwithstanding anything any other provision contained in this Section 4.02 Agreement, (i) the quotient of (A) the aggregate dollar value of the Stock Consideration (assuming that each share of Parent Common Stock has a value of $14.04) and (B) the Aggregate Total Consideration (the “Stock Percentage”) shall equal 42% (the “Required Stock Percentage”) and (ii) the quotient of (A) Cash Consideration plus aggregate Dissenting Stockholder Consideration (assuming the amount payable for each Dissenting Share is equal to the contraryPer Share Cash Consideration) and (B) the Aggregate Total Consideration (the “Cash Percentage”) shall equal 58% (the “Required Cash Percentage”).
(f) Notwithstanding any other provision contained in this Agreement, (i) the maximum number of shares of Company Common Stock that may be converted into the right to receive Stock Consideration shall be equal to the Required Stock Percentage of the issued and outstanding shares of Company Common Stock (other than Excluded Shares) immediately prior to the Effective Time (the “Maximum Stock Shares”) and (ii) the maximum number of shares of Company Common Stock that may be converted into the right to receive Cash Consideration and Dissenting Stockholder Consideration shall be equal to the Required Cash Percentage of the issued and outstanding shares of Company Common Stock (other than Excluded Shares) immediately prior to the Effective Time (the “Maximum Cash Shares”).
(g) Within three (3) Business Days after the Effective Time, Parent shall cause the Exchange Agent may, with to effect the written agreement allocation among the former holders of BEPC and Acquisition Sub, make any rules or procedures Company Common Stock of rights to receive the Merger Consideration as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Eldorado Resorts, Inc.)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) together with the Letter of Transmittal and any other transmittal materials described in Section 1.5 shall be mailed no later than five (5) business days after the Closing Date (the mailing date of such form of election being referred to holders herein as the “Mailing Date”) to each holder of Company Common HPBC Stock of record as of at the record date for the Company Shareholders MeetingEffective Time. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the a holder (or the beneficial owner through appropriate and customary documentation and instructionsinstruction) of record of Eligible Company Shares as of immediately prior to the Election Deadline HPBC Stock to elect (an “Election”) to receive shares of New York Company Class C Common the Per Share Stock (and, upon completion of Consideration or the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Per Share Cash Consideration with respect to which each share of such holder’s (or beneficial owner’s) HPBC Stock.
(b) An election pursuant to this Section 1.3 shall have been properly made only if the Exchange Agent has not shall have actually received an effective, a properly completed Election Form by 5:00 p.m., Charlotte, North Carolina time on or before 5:00 p.m.the thirtieth (30th) day following the Mailing Date, New York time, on the business day immediately preceding the or such other time and date of the Company Shareholders Meeting as BNC and HPBC may mutually agree (the “Election Deadline”) ). An Election Form shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available properly completed only if accompanied by one or more Certificates covered by such Election Forms as may reasonably be requested from time to time by all persons who become holders Form (or beneficial owners) customary affidavits and indemnification regarding the loss or destruction of Eligible Company Shares between such certificates or the record date for the Company Shareholders Meeting and the close guaranteed delivery of business on the business day prior to the Election Deadlinesuch certificates), and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) together with a duly executed Letter of Transmittal. Any Election Form may be revoked or changed by the Person submitting such Election Form (or the beneficial owner of the shares covered by such Election Form through appropriate and customary documentation and instruction) at or prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth thereinDeadline. If an Election Form is revoked prior to the Election DeadlineDeadline and no other valid election is made, the holder shares of Eligible Company Shares represented by HPBC Stock subject to such Election Form shall be deemed Stock Election Shares. Subject to have made no Election, unless a subsequent Election is submitted by the holder terms of such Eligible Company Shares in accordance with the procedures set forth in this Agreement and of the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither the BNC nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in an Election Form.
(c) Shares of HPBC Stock as to which a proper election is made for the Per Share Stock Consideration, and shares of HPBC Stock (other than Dissenting Shares) with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent an effective, properly completed Election Form. Notwithstanding anything in this Section 4.02 , are referred to the contrary, the Exchange Agent may, with the written agreement herein as “Stock Election Shares.” Shares of BEPC and Acquisition Sub, make any rules or procedures HPBC Stock as are consistent with this Section 4.02 to which a proper election is made for the implementation of Elections and the revocation of Elections Per Share Cash Consideration are referred to herein as shall be necessary or desirable to administer such Elections“Cash Election Shares.”
Appears in 2 contracts
Sources: Merger Agreement (BNC Bancorp), Merger Agreement (BNC Bancorp)
Election Procedures. (a) An Not less than thirty (30) days prior to the anticipated Effective Time (the “Mailing Date”), an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock each holder of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred as of five (5) Business Days prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner Beneficial Owner through appropriate and customary documentation and instructions), to specify (i) the number of record shares of Eligible such holder’s Company Shares as Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (the “Stock Election Shares”), (ii) the number of immediately prior shares of such holder’s Company Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (the “Cash Election Deadline to elect (an “ElectionShares”) or (iii) that such holder makes no election with respect to receive shares of New York such holder’s Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has does not received receive an effective, properly completed Election Form on or before 5:00 p.m., New York time, on during the business day immediately preceding period from the date of Mailing Date to the Company Shareholders Meeting Election Deadline (the “Election DeadlinePeriod”) shall be deemed not to have made an Electionbe No Election Shares. Parent shall publicly announce the anticipated Election Deadline at least five (5) Business Days prior to the anticipated Effective Time. If the Effective Time is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial ownersBeneficial Owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to Common Stock during the Election DeadlinePeriod, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior election made pursuant to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election this Section 2.2 shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form during the Election Period. Any Election Form may be revoked or changed by the Election Deadline or (ii) Person submitting such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were by written notice received by the Exchange Agent during the Election Period. In the event an Election Form is revoked during the Election Period, the shares of Company Common Stock represented by such Election Form shall become No Election Shares, except to the extent (if any) a subsequent election is properly made during the Election Period with respect to any or all of such shares of Company Common Stock. Subject to the terms of this Agreement and as of the Election Form, the Exchange Agent shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub Parent or the Company or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Hilb Rogal & Hobbs Co), Merger Agreement (Willis Group Holdings LTD)
Election Procedures. Each holder of record of Shares that were converted into the right to receive the Merger Consideration pursuant to Section 2.1 (each, a “Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures (an “Election”):
(a) An election Parent shall prepare a form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election FormForm of Election”) which shall be mailed to holders of Company Common Stock of record Holders so as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior Holders to the Election Deadline exercise their right to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(eb) Parent shall use commercially reasonable efforts to cause the Form of Election to be sent to Holders as soon as reasonably practicable (and in no event later than five (5) business days) after the Effective Time and to make available as promptly as reasonably practicable following a request therefor a Form of Election to any Holder who requests such Form of Election following the initial mailing of the Forms of Election and prior to the Election Deadline.
(c) Each Form of Election shall permit Holders (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all or a portion of such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a portion of such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the receipt of the Cash Consideration or the Stock Consideration; provided, however, that, notwithstanding any other provision of this Agreement to the contrary, 5,206,838 Shares issued and outstanding immediately prior to the Effective Time (the “Stock Conversion Number”) shall be converted into the Stock Consideration and the remaining Shares issued and outstanding immediately prior to the Effective Time shall be converted into the Cash Consideration (the “Cash Consideration Number”). Shares as to which a Cash Election has been made and Shares that constitute Dissenting Shares as of the Election Deadline are referred to herein as “Cash Election Shares.” Shares as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares as to which no election has been made (or as to which a Form of Election is not properly completed and returned in a timely fashion) are referred to herein as “Non-Election Shares.” The aggregate number of Shares with respect to which a Stock Election has been made is referred to herein as the “Stock Election Number.” For the avoidance of doubt, if a Holder does not submit a properly completed Form of Election in a timely fashion, the Shares held by such Holder shall be designated Non-Election Shares.
(d) Any Election shall have been made properly made only if the Person authorized to receive Elections and to act as exchange agent in connection with the transactions contemplated by this Agreement, which Person shall be selected by Parent and reasonably acceptable to the Company (i) the “Exchange Agent”), pursuant to an agreement reasonably acceptable to Parent and the Company entered into prior to the mailing of the Form of Election to Holders (the “Exchange Agent Agreement”), shall have received, by the Election Deadline, a Form of Election properly completed and signed and accompanied by, in the case of physical certificates representing Shares, Certificates to which such Form of Election relates or by an appropriate customary guarantee of delivery of such Certificates, as set forth in such Form of Election, from a member of any registered national securities exchange or a commercial bank or trust company in the United States; provided that such Certificates are in fact delivered to the Exchange Agent by the time required in such guarantee of delivery. Failure to deliver physical certificates representing Shares covered by such a guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made Election, unless otherwise determined by Parent, in its reasonable discretion. For uncertificated Shares held in book entry form (a “Book-Entry Share”), Parent shall establish Election procedures for such Shares, which procedures shall be reasonably acceptable to the Company. In the event that a Holder has provided a notice of intent to demand payment (a “Notice of Dissenter’s Intent”) pursuant to Section 13.21 of the MBCA, any Election submitted by such Holder (unless such Notice of Dissenter’s Intent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or withdrawn prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election Deadline) shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipinvalid.
(fe) The reasonable good faith determination As used herein, unless otherwise agreed in writing by Parent and the Company, “Election Deadline” means 5:00 p.m. local time (in the city in which the principal office of the Exchange Agent shall be conclusive and binding as to whether or is located) on the date that is twenty (20) business days following, but not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryincluding, the Exchange Agent may, with date of mailing of the written agreement Form of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsElection.
Appears in 2 contracts
Sources: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
Election Procedures. Each holder of an Award (aeach, an “Award Holder”) An and each record holder of Company Common Shares on the Election Form Record Date shall have the right, subject to the limitations set forth in this Section 2.2 and Section 2.4, to submit an election (each, an “Election”) in accordance with the following procedures:
(i) Parent shall direct the Exchange Agent to mail a form and other appropriate and customary transmittal materials (of election, which shall specify that delivery form shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such a form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed ), with the Company Proxy Statement to the record holders of Company Common Stock of record Shares as of the record date for the Company Shareholders Meeting. As Meeting (the “Election Form Record Date”) and each Award Holder, which Election Form shall be used herein, shares by each record holder of Company Common Stock issued Shares and outstanding and not held by any Parent Stockholder shall be referred each Award Holder who wishes to as “Eligible Company Shares”make an Election.
(bii) Each holder of a Company Common Share and each Award Holder may specify in an Election Form shall permit submitted in accordance with the provisions of this Section 2.2(c) whether such holder elects to receive with respect to such holder’s Company Common Shares or Awards, (A) the Standard Election Consideration (such Election with respect to such Company Common Shares or Awards, the beneficial owner through appropriate and customary documentation and instructions“Standard Election”), (B) the Cash Election Consideration (such Election with respect to such Company Common Shares or Awards, the “Cash Election”), or (C) the Share Election Consideration (such Election with respect to such Company Common Shares or Awards, the “Share Election”).
(iii) Any holder of record a Company Common Share or any Award Holder who does not properly make an Election in accordance with the provisions of Eligible Company Shares as of immediately this Section 2.2(c), or whose Election Form is not received by the Exchange Agent prior to the Election Deadline in the manner provided in Section 2.2(c)(iv), will be deemed to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of have made the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Standard Election with respect to which such Company Common Shares or Awards. For the Exchange Agent has not received an effectiveavoidance of doubt, properly completed Election Form on or before 5:00 p.m., New York time, on for the business day immediately preceding purpose of determining the date allocation of the Transaction Consideration among the holders of Company Shareholders Meeting Common Shares and Award Holders (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadlineapplicable), and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the any holder of Eligible Company Dissenting Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Standard Election is submitted by the holder of with respect to such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election DeadlineDissenting Shares.
(eiv) Any such holder’s Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form at its designated office, by the Election Deadline or (ii) Deadline, an Election Form properly completed and signed and, to the extent such Election has been made at or prior Form relates to Company Common Shares, accompanied by Certificates (unless such Company Common Shares are Book-Entry Shares, in which case the Election Deadline pursuant to holders shall follow the procedures instructions set forth in the Election Form. After an ) of Company Common Shares to which such Election is validly made with respect to any Eligible Company Shares, no further registration of transfers Form relates (or customary affidavits and indemnification regarding the loss or destruction of such Eligible Company Shares shall be made on the transfer books Certificates or by an appropriate guarantee of the Company unless and until delivery of such Election is properly revoked in accordance with the procedures Certificates as set forth in the such Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, ; provided that such Election shall be deemed automatically revoked Certificates are in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of fact delivered to the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to within five (5) Business Days after the Election Form, as to when Elections and revocations date of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None execution of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person such guarantee of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsdelivery).
Appears in 2 contracts
Sources: Merger Agreement (Renaissancere Holdings LTD), Merger Agreement (Platinum Underwriters Holdings LTD)
Election Procedures. Each holder of record of shares of First Charter Common Stock (“Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures:
(a) Each Holder may specify in a request made in accordance with the provisions of this Section 2.1 (each, an “Election”) (i) the number of shares of First Charter Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (ii) the number of shares of First Charter Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(b) Before the Effective Time, Fifth Third shall appoint a bank or trust company mutually agreeable to First Charter, or Fifth Third’s transfer agent, pursuant to an agreement (the “Exchange Agent Agreement”) to act as exchange agent ( the “Exchange Agent”) hereunder. An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) ), in such form as BEPC First Charter and Acquisition Sub Fifth Third shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) ), shall be mailed no more than 40 business days and no less than 26 business days before the anticipated Effective Time or on such earlier date as First Charter and Fifth Third shall mutually agree (the “Mailing Date”) to holders of Company Common Stock of record each Holder as of five business days before the record date for Mailing Date (the Company Shareholders Meeting“Election Form Record Date”). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior such Holder, subject to the Election Deadline allocation and election procedures set forth in this Section 2.1, to (i) elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) Cash Consideration for all of the Eligible Company Shares shares of First Charter Common Stock held by such holderHolder in accordance with Section 1.4(c), (ii) elect to receive the Stock Consideration for all of such shares in accordance with Section 1.4(c), (iii) elect to receive the Stock Consideration for a part of such Holder’s First Charter Common Stock and the Cash Consideration for the remaining part of such Holder’s First Charter Common Stock or (iv) indicate that such Holder has no preference as to the receipt of cash or Fifth Third Common Stock for such shares (a “Non-Election”). The holders A Holder who holds such shares as nominee, trustee or in another representative capacity (a “Representative”) may submit multiple Election Forms, provided that each such Election Form covers all the shares of any Eligible Company Shares First Charter Common Stock held by such Representative for a particular beneficial owner. Any shares of First Charter Common Stock with respect to which the Holder thereof has not, as of the Election Deadline, made an election by submission to the Exchange Agent has not received of an effective, properly completed Election Form shall be deemed Non-Election Shares.
(c) To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York Charlotte, North Carolina time, on the business day immediately preceding indicated on the Election Form (or such other time and date of the Company Shareholders Meeting as Fifth Third and First Charter may mutually agree) (the “Election Deadline”) shall be deemed ); provided, however, that the Election Deadline may not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one occur before the 25th day following the Mailing Date or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on after the business day prior to Closing Date. Fifth Third shall use all reasonable efforts to make available as promptly as possible an Election Form to any Holder who requests such Election Form following the initial mailing of the Election Forms and before the Election Deadline, and the Company . First Charter shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any An Election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of First Charter Common Stock covered by such Election Form, together with duly executed transmittal materials included with the Election Form. If a Holder either (i) does not submit a properly completed Election Form in a timely fashion or (ii) such revokes its Election has been made at or prior to Form before the Election Deadline pursuant to the procedures set forth in (without later submitting a properly completed Election Form before the Election Form. After an Election is validly made with respect to any Eligible Company SharesDeadline), no further registration the shares of transfers of First Charter Common Stock held by such Eligible Company Shares Holder shall be made on the transfer books of the Company unless and until such designated as Non-Election is properly revoked in accordance with the procedures set forth in the Shares. Any Holder may revoke or change his or her Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of written notice to the Exchange Agent shall be conclusive and binding as to whether only if such notice of revocation or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were change is actually received by the Exchange Agent at or before the Election Deadline. Fifth Third shall cause the Certificate or Certificates relating to any revoked Election Form to be promptly returned without charge to the person submitting the Election Form to the Exchange Agent. Subject to the terms of this Agreement and as to whether to disregard immaterial defects in a completed of the Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under have discretion to determine when any obligation to notify Election, modification or revocation is received and whether any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrarysuch Election, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules modification or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionshas been properly made.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (First Charter Corp /Nc/), Merger Agreement (First Charter Corp /Nc/)
Election Procedures. Each holder of record of Shares that were converted into the right to receive the Merger Consideration pursuant to Section 2.1 (each, a “Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures (an “Election”):
(a) An election Parent shall prepare a form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election FormForm of Election”) which shall be mailed to holders of Company Common Stock of record Holders so as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior Holders to the Election Deadline exercise their right to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(eb) Parent shall use commercially reasonable efforts to cause the Form of Election to be sent to Holders as soon as reasonably practicable (and in no event later than five (5) business days) after the mailing of the Proxy Statements/Prospectus and to make available as promptly as reasonably practicable following a request therefor a Form of Election to any Holder who requests such Form of Election following the initial mailing of the Forms of Election and prior to the Election Deadline.
(c) Each Form of Election shall permit Holders (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all or a portion of such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a portion of such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the receipt of the Cash Consideration or the Stock Consideration; provided, however, that, notwithstanding any other provision of this Agreement to the contrary, a number of Shares issued and outstanding immediately prior to the Effective Time (the “Stock Conversion Number”) shall be converted into the Stock Consideration so that 8,000,000 shares of Parent Common Stock are issued in the Merger and the remaining Shares issued and outstanding immediately prior to the Effective Time shall be converted into the Cash Consideration (the “Cash Consideration Number”). Shares as to which a Cash Election has been made and Shares that constitute Dissenting Shares as of the Election Deadline are referred to herein as “Cash Election Shares.” Shares as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares as to which no election has been made (or as to which a Form of Election is not properly completed and returned in a timely fashion) are referred to herein as “Non-Election Shares.” The aggregate number of Shares with respect to which a Stock Election has been made is referred to herein as the “Stock Election Number.” For the avoidance of doubt, if a Holder does not submit a properly completed Form of Election in a timely fashion, the Shares held by such Holder shall be designated Non-Election Shares.
(d) Any Election shall have been made properly made only if the Person authorized to receive Elections and to act as exchange agent in connection with the transactions contemplated by this Agreement, which Person shall be selected by Parent and reasonably acceptable to the Company (i) the “Exchange Agent”), pursuant to an agreement reasonably acceptable to Parent and the Company entered into prior to the mailing of the Form of Election to Holders (the “Exchange Agent Agreement”), shall have received, by the Election Deadline, a Form of Election properly completed and signed and accompanied by, in the case of physical certificates representing Shares, Certificates to which such Form of Election relates or by an appropriate customary guarantee of delivery of such Certificates, as set forth in such Form of Election, from a member of any registered national securities exchange or a commercial bank or trust company in the United States; provided that such Certificates are in fact delivered to the Exchange Agent by the time required in such guarantee of delivery. Failure to deliver physical certificates representing Shares covered by such a guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made Election, unless otherwise determined by Parent, in its reasonable discretion. For uncertificated Shares held in book entry form (a “Book-Entry Share”), Parent shall establish Election procedures for such Shares, which procedures shall be reasonably acceptable to the Company. In the event that a Holder has provided a notice of intent to demand payment (a “Notice of Dissenter’s Intent”) pursuant to Section 13.21 of the MBCA, any Election submitted by such Holder (unless such Notice of Dissenter’s Intent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or withdrawn prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election Deadline) shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipinvalid.
(fe) The reasonable good faith determination As used herein, unless otherwise agreed in writing by Parent and the Company, “Election Deadline” means 5:00 p.m. local time (in the city in which the principal office of the Exchange Agent shall be conclusive and binding as to whether or is located) on the date that is three (3) business days prior to, but not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryincluding, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsClosing Date.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company shall mutually agree (the “Election Form”) shall be (i) filed by Parent as an exhibit to the Form S-4, and (ii) mailed by the Company, together with the Joint Proxy Statement/Prospectus, to holders of Company Common Stock each holder of record of Shares as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Stockholders Meeting (the “Eligible Company SharesRecord Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record Shares to specify (A) the number of Eligible Company such holder’s Shares as with respect to which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (B) the number of immediately prior such holder’s Shares with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Deadline to elect (an “ElectionShares”) or (C) that such holder makes no election with respect to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder’s Shares (“No Election Shares”). The holders of any Eligible Company Any Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York City time, on the date that is five (5) business day immediately days preceding the date of the Company Shareholders Meeting Closing Date (the “Election Deadline”) shall be deemed not to have made an Electionbe No Election Shares.
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders any Person that becomes a holder (or beneficial ownersowner) of Eligible Company Shares during the period between the record date for the Company Shareholders Meeting Record Date and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information with respect to such holder reasonably necessary for it to perform as specified herein.
(d) Any election contemplated in Section 4.2(b) shall be considered to have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such Certificates) representing all Shares covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder of Eligible Company Exchange Agent by the Election Deadline, the Shares represented by such revoked Election Form shall be deemed No Election Shares, and Parent shall cause the Certificates to have made no Election, unless a subsequent Election is submitted by be promptly returned without charge to the holder of such Eligible Company Shares in accordance with the procedures set forth in submitting the Election Form prior upon written request to that effect from such holder. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, Parent and the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent or Parent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Parent nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. .
(e) Notwithstanding anything any other provision contained in this Agreement, the total number of Shares that will be converted into the right to receive the Per Share Cash Consideration pursuant to Section 4.02 4.1(a) (which, for this purpose, shall be deemed to include Shares that are owned by Dissenting Stockholders) shall equal (i) 12,725,035 Shares (which constitute 33% of the total number of Shares outstanding as of October 31, 2012), plus (ii) 33% of the number of Shares that are issued from and after October 31, 2012 and prior to the contraryEffective Time, pursuant to the exercise or vesting of Company Options or Company RSUs outstanding as of the date hereof (clauses (i) and (ii), together, the “Target Cash Conversion Number”).
(f) As soon as practicable after the Effective Time (and in no event later than five (5) days after the Effective Time), Parent shall cause the Exchange Agent may, to effect the allocation among the holders of Shares of rights to receive Parent Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 2 contracts
Sources: Merger Agreement (KAYAK Software Corp), Merger Agreement (Priceline Com Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing Seller Common Stock shall pass, only upon proper delivery of such Eligible Certificates cer- tificates to an exchange agent designated by Buyer (the Exchange "Ex- change Agent")) in such form as BEPC Buyer and Acquisition Sub Seller shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “"Election Form”") shall be mailed approximately 25 days prior to holders the anticipated Effective Time or on such other date as Buyer and Seller shall mutually agree ("Mailing Date") to each holder of Company record of Seller Common Stock of record as of five busi- ness days prior to the record date Mailing Date ("Election Form Record Date"). Buyer shall determine the anticipated Effective Time (the "Anticipated Effective Time") in its sole discretion and the failure of the Effective Time to occur at the Anticipated Effective Time for purposes of this Section 1.08 shall not af- fect the Company Shareholders Meetingtime periods which are established for purposes of these election procedures. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation documenta- tion and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C only Buyer Common Stock with respect to such holder's Seller Common Stock (and"Stock Election Shares"), upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by to elect to receive only cash with respect to such holder's Seller Common Stock ("Cash Election Shares") or to indicate that such holder makes no election ("No Election Shares"). The holders For purposes of any Eligible Company this Section 1.08, Dissenting Shares shall be treated as Cash Election Shares but shall not be con- verted into the Per Share Stock Consideration or the Per Share Cash consideration except as provided in Section 1.11. Any Seller Common Stock with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, p.m. on the business 20th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Buyer and Seller may mutually agree) (the “"Election Deadline”") shall be deemed not to have made an Electionbe "No Election Shares.
(c) BEPC and Acquisition Sub " Buyer shall promptly make available one or more Election Elec- tion Forms as may be reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Seller Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Seller shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
. Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more certificates (dor customary affidavits and indemni- fication regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of Seller Common Stock covered by such Election Form, together with duly executed transmittal materials in- cluded in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Seller Common Stock represented by such Election Form shall become No Election Shares and Buyer shall cause the certificates repre- senting Seller Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the person who submitted the Elec- tion Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discre- tion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior and to the Election Deadline pursuant to the procedures set forth disregard immaterial defects in the Election Form. After an Election is validly made with respect to Forms, and any Eligible Company Shares, no further registration good faith decisions of transfers of the Exchange Agent regarding such Eligible Company Shares matters shall be made on the transfer books of the Company unless binding and until such Election is properly revoked in accordance with the procedures set forth in the Election Formconclusive. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of Neither Buyer nor the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under un- der any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Mercantile Bancorporation Inc), Agreement and Plan of Reorganization (Roosevelt Financial Group Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to a bank or trust company designated by Buyer and reasonably satisfactory to the Company (the "Exchange Agent")) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company and Buyer shall mutually agree (the “"Election Form”) "), shall be mailed no less than 20 Business Days prior to holders the anticipated Closing Date or such other date as the Company and Buyer shall mutually agree (the "Mailing Date") to each holder of record of Company Common Stock as of five Business Days prior to the Mailing Date. Each Election Form shall permit the holder of record as of Company Common Stock (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all or a portion of such holder's shares (a "Cash Election"), (ii) elect to receive the Stock Consideration for all or a portion of such holder's shares (a "Stock Election"), or (iii) make no election with respect to the receipt of the record date for Cash Consideration or the Company Shareholders Meeting. As used hereinStock Consideration (a "Non-Election"); provided, however, that, notwithstanding any other provision of this Agreement to the contrary, but subject to Section 2.5, 2,347,000 shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder immediately prior to the Effective Time (the "Stock Conversion Number"), shall be converted into the Stock Consideration and the remaining shares of Company Common Stock shall be converted into the Cash Consideration (the "Cash Consideration Number"). A record holder acting in different capacities or acting on behalf of other Persons (as defined in Section 9.3) in any way will be entitled to submit an Election Form for each capacity in which such record holder so acts with respect to each Person for which it so acts. Shares of Company Common Stock as to which a Cash Election has been made are referred to herein as “Eligible "Cash Election Shares." Shares of Company Common Stock as to which a Stock Election has been made are referred to herein as "Stock Election Shares”." Shares of Company Common Stock as to which no election has been made (or as to which an Election Form is not properly completed and returned in a timely fashion) are referred to herein as "Non-Election Shares." The aggregate number of shares of Company Common Stock with respect to which a Stock Election has been made is referred to herein as the "Stock Election Number."
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an To be effective, a properly completed Election Form shall be received by the Exchange Agent on or before 5:00 p.m., New York timeEastern Time, on the business 25th day immediately preceding following the Mailing Date (or such other time and date of as mutually agreed upon by the Company Shareholders Meeting parties (the “Election Deadline”) which date shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day at least five Business Days prior to the anticipated Closing Date and shall be publicly announced by Buyer as soon as practicable prior to such date)) (the "Election Deadline"), and accompanied by the Company shall provide Certificates as to which such Election Form is being made or by an appropriate guarantee of delivery of such Certificates, as set forth in the Election Form, from a member of any registered national securities exchange or a commercial bank or trust company in the United States (provided, however, that such Certificates are in fact delivered to the Exchange Agent all information by the time required in such guarantee of delivery; failure to deliver shares of Company Common Stock covered by such guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made election, unless otherwise determined by Buyer, in its sole discretion). For shares of Company Common Stock held in book entry form, Buyer shall establish procedures for delivery of such shares, which procedures shall be reasonably necessary for it acceptable to perform as specified herein.
the Company. If a holder of Company Common Stock either (di) Any does not submit a properly completed Election Form may be revoked in a timely fashion or (ii) revokes the holder's Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless (without later submitting a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any ), the shares of Company Common Stock held by such holder shall be designated Non-Election Shares. In addition, all Election Forms shall have automatically be revoked, and all Certificates returned, if the Exchange Agent is notified in writing by Buyer and the Company that this Agreement has been properly made only if (i) terminated. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(c) The allocation among the holders of shares of Company Common Stock of rights to receive the Cash Consideration and the Stock Consideration will be made as set forth in this Section 4.02 to the contrary, 2.4(c) (with the Exchange Agent mayto determine, consistent with Section 2.4(a), whether fractions of Cash Election Shares, Stock Election Shares or Non-Election Shares, as applicable, shall be rounded up or down).
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration, and, subject to Section 2.3 hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder's Stock Election Shares being converted into the right to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the "Shortfall Number"), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and the Cash Election Shares shall be necessary treated in the following manner:
(A) if the Shortfall Number is less than or desirable equal to administer the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.3 hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such Electionsholder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder's Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration, and, subject to Section 2.3 hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder's Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Bancorp Rhode Island Inc), Merger Agreement (Brookline Bancorp Inc)
Election Procedures. Subject to the terms of the Exchange Agent Agreement, each holder of record of shares of Alliance Common Stock issued and outstanding immediately prior to the Effective Time (a “Holder”) shall have the right, subject to the limitations set forth in this Article 3, to submit an election on or prior to the Election Deadline in accordance with the following procedures:
(a) An election Each Holder may specify in a request made in accordance with the provisions of this Section 3.1 (herein called an “Election”) (i) the number of shares of Alliance Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (ii) the number of shares of Alliance Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(b) WSFS shall prepare a form and other appropriate and customary transmittal materials reasonably acceptable to Alliance (the “Form of Election”) (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible the Certificates to the Exchange Agent) in such form so as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed permit those holders to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred exercise their right to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(ec) Any Prior to the Mailing Date, WSFS shall appoint an exchange agent reasonably acceptable to Alliance (the “Exchange Agent”), for the purpose of receiving Elections and exchanging shares of Alliance Common Stock represented by Certificates for Merger Consideration, pursuant to an exchange agent agreement entered into prior to the Mailing Date (the “Exchange Agent Agreement”). As soon as reasonably practicable after the Effective Time and in any event not later than five Business Days following the Effective Time (the “Mailing Date”), the Exchange Agent shall mail to each Holder of record of a Certificate a Form of Election and instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration, in such form as Alliance and WSFS may reasonably agree. Subject to the terms of the Exchange Agent Agreement, any Election shall have been made properly made only if (i) the Exchange Agent shall have received a properly completed Election Form received, by the Election Deadline Deadline, a Form of Election properly completed and signed and accompanied by Certificates representing the shares of Alliance Common Stock to which such Form of Election relates, duly endorsed in blank or otherwise in acceptable form or by an appropriate customary guarantee of delivery of such Certificates, as set forth in such Form of Election, from a firm that is an “eligible guarantor institution” (ii) as defined in Rule 17Ad-15 under the Exchange Act); provided, that such Election has been made at or prior Certificates are in fact delivered to the Election Deadline pursuant to Exchange Agent by the time required in such guarantee of delivery, any additional documents specified in the procedures set forth in the Election FormForm of Election. After an Election is validly made with respect Failure to any Eligible Company Shares, no further registration deliver shares of transfers Alliance Common Stock covered by such a guarantee of such Eligible Company Shares shall be made on delivery within the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures time set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, on such Election guarantee shall be deemed automatically revoked to invalidate any otherwise properly made Election, unless otherwise determined by WSFS, in its sole and absolute discretion. As used herein, unless otherwise agreed in advance by Alliance and WSFS, “Election Deadline” means 5:00 p.m. local time (in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination city in which the principal office of the Exchange Agent is located) on the date that is 30 days following the Effective Time. WSFS shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to issue a press release announcing the anticipated date of the Election FormDeadline not more than 10 Business Days before, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryat least five Business Days prior to, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsElection Deadline.
Appears in 2 contracts
Sources: Merger Agreement (WSFS Financial Corp), Agreement and Plan of Reorganization (Alliance Bancorp, Inc. Of Pennsylvania)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC a bank or trust company designated by Buyer and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable satisfactory to the Company (the “Exchange Agent”)) in such form as the Company and Buyer shall mutually agree (the “Election Form”) ), shall be mailed no less than 20 Business Days prior to holders the anticipated Closing Date or such other date as the Company and Buyer shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock as of five Business Days prior to the Mailing Date. Each Election Form shall permit the holder of record as of Company Common Stock (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all or a portion of such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a portion of such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the receipt of the record date for Cash Consideration or the Company Shareholders Meeting. As used hereinStock Consideration (a “Non-Election”); provided, however, that, notwithstanding any other provision of this Agreement to the contrary, 60 percent (60%) of the shares of Company Common Stock issued and outstanding and immediately prior to Effective Date (which shall not held by any Parent Stockholder exceed 16,350,000) (the “Stock Conversion Number”) shall be converted into the Stock Consideration and the remaining shares of Company Common Stock shall be converted into the Cash Consideration. A record holder acting in different capacities or acting on behalf of other Persons in any way will be entitled to submit an Election Form for each capacity in which such record holder so acts with respect to each Person for which it so acts. Shares of Company Common Stock as to which a Cash Election has been made are referred to herein as “Eligible Cash Election Shares.” Shares of Company Common Stock as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares of Company Common Stock as to which no election has been made (or as to which an Election Form is not properly completed and returned in a timely fashion) are referred to herein as “Non-Election Shares.” The aggregate number of shares of Company Common Stock with respect to which a Stock Election has been made is referred to herein as the “Stock Election Number.”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an To be effective, a properly completed Election Form shall be received by the Exchange Agent on or before 5:00 p.m., New York timeEastern Time, on the business 25th day immediately preceding following the Mailing Date (or such other time and date of as mutually agreed upon by the Company Shareholders Meeting parties (which date shall be publicly announced by Buyer as soon as practicable prior to such date)) (the “Election Deadline”), accompanied by the Certificate(s) shall be deemed not as to have which such Election Form is being made or by an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms appropriate guarantee of delivery of such Certificate(s), as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to set forth in the Election DeadlineForm, and from a member of any registered national securities exchange or a commercial bank or trust company in the Company shall provide United States (provided, however, that such Certificate(s) are in fact delivered to the Exchange Agent all information reasonably necessary for it by the time required in such guarantee of delivery; failure to perform as specified herein.
deliver shares of Company Common Stock covered by such guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made election, unless otherwise determined by Buyer, in its sole discretion). If a holder of Company Common Stock either (di) Any does not submit a properly completed Election Form may be revoked in a timely fashion or (ii) revokes the holder’s Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless (without later submitting a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any ), the shares of Company Common Stock held by such holder shall be designated Non-Election shall have been properly made only if (i) Shares. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(c) The allocation among the holders of shares of Company Common Stock of rights to receive the Cash Consideration and the Stock Consideration will be made as set forth in this Section 4.02 2.4(c).
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration, and, subject to Section 2.3 hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the contraryproduct obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the Exchange Agent maynumerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder’s Stock Election Shares being converted into the right to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and the Cash Election Shares shall be necessary treated in the following manner:
(A) if the Shortfall Number is less than or desirable equal to administer the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.3 hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such Electionsholder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration, and, subject to Section 2.3 hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 2 contracts
Sources: Merger Agreement (PCSB Financial Corp), Merger Agreement (Brookline Bancorp Inc)
Election Procedures. Each holder of record of shares of Company Common Stock (“Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures:
(a) An election Each Holder may specify in a request made in accordance with the provisions of this Section 2.12 (herein called an “Election”) (i) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (ii) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(b) Parent shall prepare a form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election FormForm of Election”) which shall be mailed to record holders of Company Common Stock of record so as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior those holders to the Election Deadline exercise their right to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(ec) Parent shall make the Form of Election initially available not less than twenty (20) Business Days prior to the anticipated Election Deadline and shall use commercially reasonable efforts to make available as promptly as possible a Form of Election to any shareholder of Company who requests such Form of Election following the initial mailing of the Forms of Election and prior to the Election Deadline.
(d) Any Election shall have been made properly made only if the person authorized to receive Elections and to act as exchange agent under this Agreement, which person shall be a bank or trust company selected by Parent and reasonably acceptable to Company (ithe “Exchange Agent”), pursuant to an agreement (the “Exchange Agent Agreement”) entered into prior to the mailing of the Form of Election to Company shareholders, shall have received, by the Election Deadline, a Form of Election properly completed and signed and accompanied by Certificates to which such Form of Election relates or by an appropriate customary guarantee of delivery of such certificates, as set forth in such Form of Election, from a member of any registered national securities exchange or a commercial bank or trust company in the United States; provided that such Certificates are in fact delivered to the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) time required in such Election has been made at or prior guarantee of delivery. Failure to deliver shares of Company Common Stock covered by such a guarantee of delivery within the Election Deadline pursuant to the procedures time set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of on such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election guarantee shall be deemed automatically revoked in the event of to invalidate any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been otherwise properly made or revoked pursuant to the Election FormElection, as to when Elections and revocations of Elections were received unless otherwise determined by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPCin its sole discretion. As used herein, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.unless
Appears in 2 contracts
Sources: Merger Agreement (Capital Bank Financial Corp.), Merger Agreement (Capital Bank Financial Corp.)
Election Procedures. (a) An election form as Washington Mutual and other appropriate and customary transmittal materials Dime shall mutually agree (which shall specify that delivery shall "Election Form") will be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates sent no later than 15 Business Days prior to the Exchange Agentexpected Effective Time (provided that it need not be sent until the Requisite Regulatory Approvals (as defined in Section 8.1(c)) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable have been obtained) to the Company (the “Election Form”) shall be mailed to holders each holder of Company record of Dime Common Stock and to each holder of record of warrants (each, a "Warrant Holder") with respect to Deemed Shares (as of defined in the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(bVoting/Purchase Agreement) Each Election Form shall permit the permitting such holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation) (i) to elect to receive Washington Mutual Common Stock with respect to each share of record such holder's Dime Common Stock as provided herein or, in the case of Eligible Company each Warrant Holder, Deemed Shares as provided herein (the "Dime Stock Election Shares") or (ii) to elect to receive cash with respect to each share of immediately prior such holder's Dime Common Stock as provided herein or, in the case of each Warrant Holder, with respect to the Deemed Shares as provided herein (the "Dime Cash Election Deadline to elect (an “Election”) to receive Shares"). Any shares of New York Company Class C Dime Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company or Deemed Shares with respect to which the holder thereof or the Warrant Holder shall not, as of the Election Deadline, have made such an election by submission to an exchange agent that Washington Mutual shall designate with Dime's reasonable consent (the "Exchange Agent has not received Agent"), on an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Electionbe Dime Stock Election Shares. Any Dissenting Shares shall be deemed to be Dime Cash Election Shares, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made and with respect to any Eligible Company Shares, such shares the holders thereof shall in no further registration event receive consideration comprised of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipWashington Mutual Common Stock.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 2 contracts
Sources: Merger Agreement (Dime Bancorp Inc), Merger Agreement (Washington Mutual Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) ), including a letter of transmittal and related instructions, which Election Form and such other documents shall be in the form as Parent and the Company shall reasonably agree upon, shall be initially mailed not less than twenty (20) Business Days prior to holders the anticipated Election Deadline or on such other date as Parent and the Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record close of business on the fifth (5th) Business Day prior to the Mailing Date or on such other date for as Parent and the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as mutually agree (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms (and other related documents) as may reasonably be requested from time to time by all persons Persons who become record holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(c) Each Election Form shall permit the record holder of Company Common Stock to specify: (x) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Mixed Election; (y) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Cash Election; and (z) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Stock Election.
(d) Any shares of Company Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., Eastern Time, on the date that is three (3) Business Days prior to the Closing Date (or such other time and date as Parent and the Company shall agree) (the “Election Deadline”) (other than Canceled Shares) shall be deemed to be “No Election Shares” and the holders of such No Election Shares shall be deemed to have made a Mixed Election with respect to such No Election Shares. The Company and Parent shall cooperate to issue a press release reasonably satisfactory to each of them announcing the date of the Election Deadline at least five (5) Business Days prior to the Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(e) Any election shall have been effective only if the Exchange Agent shall have actually received a properly completed Election Form (including any required letter of transmittal, any Certificates and other documents required by the Election Form) or any required letter of transmittal and the related instructions, by the Election Deadline. Any Election Form may be revoked or changed by the authorized Person properly submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall be deemed become No Election Shares, except to have made no Election, unless the extent a subsequent Election election is submitted by the holder properly made with respect to any or all of such Eligible shares of Company Shares in accordance with the procedures set forth in the Election Form Common Stock prior to the Election Deadline. All elections shall be automatically deemed revoked upon receipt by the Exchange Agent of written notification from the parties that this Agreement has been terminated in accordance with the terms hereof. If an election is revoked, any Certificates and other documents received by the Exchange Agent shall be promptly returned to the shareholder submitting the same to the Exchange Agent.
(ef) Any Subject to the terms of this Agreement and of the Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub the Company or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(g) As promptly as practicable following the First Effective Time, and in this Section 4.02 to no event later than the contrarythird (3rd) Business Day thereafter, the Exchange Agent mayshall make all computations contemplated by Section 2.1(a)(ii).
(h) Without limitation of Section 5.3, with the written agreement of BEPC Company and Acquisition SubParent shall solicit Cash Elections, Stock Elections and Mixed Elections under this Agreement in compliance with, and shall make any rules or procedures as and all filings that are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsadvisable under, all applicable rules and regulations of the SEC.
Appears in 1 contract
Sources: Merger Agreement (Hni Corp)
Election Procedures. (a) An election form The parties shall exercise their respective rights under Section 10 hereof by sending a written notice by United States certified or registered mail, return receipt requested, postage prepaid, addressed: (i) if to the Trust (or any Permitted Transferee) at the address specified above (or to any Permitted Transferee at the address furnished by such Permitted Transferee by written notice to Holdings), and (ii) if to Holdings, to the attention of the Board of Directors of Holdings, at the address specified in Section 19 hereof, with copies to Ecke▇▇ ▇▇▇m▇▇▇ ▇▇▇▇▇▇ & ▇ell▇▇▇ ▇▇▇ the Merr▇▇▇ ▇▇▇c▇ ▇▇▇estors, at their addresses specified in Section 19 hereof, or to such other appropriate and customary transmittal materials (which shall specify address as either party has furnished to the other in writing, except that delivery notices of change of address shall be effected, and risk of loss and title to Eligible Certificates shall pass, effective only upon proper delivery of such Eligible Certificates receipt. Other notices pursuant to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as this Agreement shall be reasonably acceptable to communicated in the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used manner provided in Section 19, unless otherwise expressly provided herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form Holdings' notice of its determination to effect a Call Repurchase shall permit be effective if deposited in the holder mail as specified in subsection (or the beneficial owner through appropriate and customary documentation and instructionsa) of record of Eligible Company Shares as of immediately prior this Section 11 or hand delivered to the Election Deadline to elect Trustee and/or any Permitted Transferee within the applicable time period specified in Section 10(a)(i) hereof and shall specify (an “Election”i) to receive shares the Call Repurchase Price and (ii) in reasonable detail the basis on which such price was computed. Any Initial Put Notice or Second Put Notice shall be effective if received by the Board of New York Company Class C Common Stock (Directors of Holdings within the applicable time period specified in Section 10(b)(i) or Section 10(b)(ii); and, upon completion of within 45 calendar days after the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held receipt by such holder. The holders Holdings of any Eligible Company such notice, Holdings shall notify the Trust (and any Permitted Transferees) of (i) the number of Initial Put Shares with respect or Secondary Put Shares, as the case may be, to be purchased by Holdings, and (ii) the applicable Put Repurchase Price (specifying in reasonable detail the basis on which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Electionsuch price was computed).
(c) BEPC Any Repurchase Notice shall specify the place, time and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting delivery of and payment for such Shares, which shall be in the close City of business on the business day prior to the Election DeadlinePittsburgh, and during normal business hours on a Business Day which shall not be less than 10 nor more than 30 calendar days after the Company shall provide to receipt of such notice by the Exchange Agent all information reasonably necessary for it to perform as specified herein.
Trust (d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented or by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election DeadlinePermitted Transferees).
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: RBK Exchange and Repurchase Agreement (Education Management Corporation)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing Seller Common Stock shall pass, only upon proper delivery of such Eligible Certificates certificates to an exchange agent designated by Buyer and reasonably acceptable to Seller (the "Exchange Agent")) in such form as BEPC Buyer and Acquisition Sub Seller shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “"Election Form”") shall be mailed approximately 25 days prior to holders the anticipated Effective Time or on such other date as Buyer and Seller shall mutually agree ("Mailing Date") to each holder of Company record of Seller Common Stock of record as of five business days prior to the record date Mailing Date ("Election Form Record Date"). Buyer shall determine the anticipated Effective Time (the "Anticipated Effective Time") in its sole discretion and the failure of the Effective Time to occur at the Anticipated Effective Time for purposes of this Section 1.08 shall not affect the Company Shareholders Meetingtime periods which are established for purposes of these election procedures; provided that the Effective Time occurs no later than 45 days following the Mailing Date. As used herein, shares All Election Forms will become revocable if the Effective Time has not occurred within 45 days of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) the Mailing Date. Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares Buyer Common Stock with respect to some or all of New York Company Class C such holder's Seller Common Stock (and"Stock Election Shares"), upon completion of the Parent Exchange, Parent LP Units) for to elect to receive cash with respect to some or all of the Eligible Company Shares held by such holder's Seller Common Stock ("Cash Election Shares") or to indicate that such holder makes no election ("No Election Shares"). The holders For purposes of any Eligible Company this Section 1.08, Dissenting Shares shall be treated as Cash Election Shares for purposes of this Section 1.08 but shall not be converted into the Per Share Stock Consideration or the Per Share Cash consideration except as provided in Section 1.11. Any Seller Common Stock with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, p.m. on the business 20th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Buyer and Seller may mutually agree) (the “"Election Deadline”") shall be deemed not to have made an Electionbe "No Election Shares.
(c) BEPC and Acquisition Sub " Buyer shall make available one or more Election Forms as may be reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Seller Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Seller shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
. Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more certificates (dor customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of Seller Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form (i) at or prior to the Election Deadline with respect and (ii) so long as prior to the Eligible Company Shares subject thereto in accordance with Effective Time, at any time 45 days following the procedures set forth thereinMailing Date. If In the event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Seller Common Stock represented by such Election Form shall become No Election Shares and Buyer shall cause the certificates representing Seller Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the person who submitted the Election Form, which person may then submit a new Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (ai) An Not less than 30 days prior to the anticipated Effective Time, an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates any certificate (a “Certificate”) theretofore representing shares of Company Common Stock or non-certificated shares represented by book entry (“Book Entry Shares”) shall pass, only upon proper delivery of such Eligible Certificates or Book Entry Shares, respectively, to the Exchange Agent) ), in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) ), shall be mailed at such time as the Company and Parent may agree (the “Mailing Date”) to holders of Company Common Stock each holder of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent as of the close of business on the record date for notice of the Company Stockholder shall be referred to as Meeting (the “Eligible Company SharesElection Form Record Date”).
(bii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of any Excluded Shares or any Appraisal Shares, to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Mixed Consideration, (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Stock Election Consideration, (iii) the number of shares of such holder’s Company Common Stock with respect to which such holder elects to receive the Per Share Cash Election Consideration, or (iv) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “Non-Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 20th day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and Parent shall agree) (the “Election Deadline”) (other than any shares of Company Common Stock that constitute Appraisal Shares as of such time) shall also be deemed not to have made an Electionbe Non-Election Shares.
(ciii) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(div) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only (A) if accompanied by one or more Certificates (iior customary affidavits and, if required by Parent or the Surviving Entity, the posting by such Person of a bond, in such reasonable amount as the Surviving Entity may direct, as indemnity against any claim that may be made against it with respect to such Certificate) and/or (B) upon receipt of an “agent’s message” by the Exchange Agent or such other evidence of transfer of Book Entry Shares to the Exchange Agent as the Exchange Agent may reasonably request, collectively representing all shares of Company Common Stock covered by such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth Form, together with duly executed transmittal materials included in the Election Form. After Any Election Form may be revoked or changed by the Person submitting such Election Form by written notice received by the Exchange Agent prior to the Election Deadline. In the event an Election Form is validly revoked prior to the Election Deadline, the shares of Company Common Stock represented by such Election Form shall become Non-Election Shares and Parent shall cause the Certificates representing such shares of Company Common Stock or Book Entry Shares to be promptly returned without charge to the Person submitting the Election Form upon written request to that effect from the holder who submitted the Election Form, except to the extent (if any) a subsequent election is properly made with respect to any Eligible Company Shares, no further registration of transfers or all of such Eligible shares of Company Shares shall be made on Common Stock. Subject to the transfer books terms of the Company unless this Agreement and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as Parent shall have sole discretion, which it may delegate in whole or in part to when Elections and revocations of Elections were received by the Exchange Agent Agent, to determine whether any election, revocation or change has been properly or timely made and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of Parent (or the Exchange Agent, if so empowered) regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Merger Sub or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery Election Form shall be effected, and risk included with each copy of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be Prospectus/Proxy Statement/Prospectus mailed to holders of Company BFC Common Stock of record as of the record date for the Company Shareholders MeetingStock. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation):
(i) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive the Common Stock Consideration with respect to all or a portion of his/her/its shares of New York Company Class C BFC Common Stock (and, upon completion of the Parent Exchange, Parent LP Units“Common Stock Election Shares”); or
(ii) for all of to elect to receive the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Cash Consideration with respect to which the Exchange Agent has not received an effective, properly completed Election Form on all or before 5:00 p.m., New York time, on the business day immediately preceding the date a portion of the Company Shareholders Meeting his/her/its shares of BFC Common Stock (the “Cash Election DeadlineShares”) ). The Exchange Agent shall be deemed not use reasonable efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make the Election Form available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares BFC Common Stock during the period between the record date for the Company Shareholders Meeting mailing of the Election Form and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election holder’s election shall have been properly made only if (i) the Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by certificates that immediately prior to the Effective Date represented issued and outstanding shares of BFC Common Stock (the “BFC Certificates”) to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such BFC Certificates as set forth in such Election Form from a firm which is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act) provided that such BFC Certificates are in fact delivered to the Exchange Agent by the time set forth in such guarantee of delivery). If a holder of BFC Common Stock either: (i) does not submit a properly completed Election Form by before the Election Deadline; (ii) revokes an Election Form prior to the Election Deadline and does not resubmit a properly completed Election Form prior to the Election Deadline or (iiiii) such Election has been made at fails to perfect his, her or prior to the Election Deadline its dissenters’ rights pursuant to subsection 2.05 of this Agreement, the procedures set forth in shares of BFC Common Stock held by such holder shall be designated “No-Election Shares.” Nominee record holders who hold BFC Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Common Stock Election FormShares, Cash Election Shares and No-Election Shares. After an For purposes of this Section 2.02, any Dissenting BFC Shares shall be deemed to be Cash Election is validly made Shares and, with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryshares, the Exchange Agent may, with the written agreement holders thereof shall in no event be classified as holders of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsReallocated Common Stock Shares.
Appears in 1 contract
Election Procedures. Each holder of record of shares of Company Common Stock to be converted into the right to receive the Merger Consideration in accordance with, and subject to, Section 2.1(b) and Section 2.2(a) (aa “Holder”) An shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures:
(i) Each Holder may specify in a request made in accordance with the provisions of this Section 2.2(b) (herein called an “Election”) (A) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (B) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(ii) Parent shall prepare a form and other reasonably acceptable to the Company, including appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC prepared by Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election FormForm of Election”), so as to permit Holders to exercise their right to make an Election.
(iii) Parent (A) shall be mailed initially make available and mail the Form of Election not less than 20 Business Days prior to holders of Company Common Stock the anticipated Election Deadline to Holders of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately Business Day prior to the Election Deadline such mailing date, and (B) following such mailing date, shall use all reasonable efforts to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more as promptly as possible a Form of Election Forms as may reasonably be requested from time to time by all persons any stockholder who become holders (or beneficial owners) requests such Form of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day Election prior to the Election Deadline, . The time period between such mailing date and the Company shall provide Election Deadline is referred to herein as the Exchange Agent all information reasonably necessary for it to perform as specified herein“Election Period”.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(eiv) Any Election shall have been made properly made only if (i) the Exchange Agent shall have received received, during the Election Period, a Form of Election properly completed and executed (including duly executed transmittal materials included in the Form of Election) and accompanied by any Certificates representing all certificated shares to which such Form of Election Form relates or by the Election Deadline or (ii) an appropriate customary guarantee of delivery of such Election has been made at or prior to the Election Deadline pursuant to the procedures Certificates, as set forth in the Election Form. After an Election is validly made with respect to such Form of Election, from a member of any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth registered national securities exchange or a commercial bank or trust company in the United States. As used herein, unless otherwise agreed in advance by the Parties, “Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked Deadline” means 5:00 p.m. local time (in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination city in which the principal office of the Exchange Agent is located) on the date which the Parties shall be conclusive agree is as near as practicable to two Business Days preceding the Closing Date. The Company and binding as Parent shall cooperate to whether or not an Election shall have been properly made or revoked pursuant issue a press release reasonably satisfactory to each of them announcing the date of the Election FormDeadline not more than 15 Business Days before, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryat least five Business Days prior to, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsElection Deadline.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to a bank or trust company designated by ICBC and reasonably satisfactory to the Company (the "Exchange Agent")) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company and ICBC shall mutually agree (the “"Election Form”) "), shall be mailed at least 30 days prior to holders the anticipated Effective Time or on such earlier date as ICBC and the Company shall mutually agree (the "Mailing Date") to each holder of record of Company Common Stock of record as of five business days prior to the record date for the Company Shareholders MeetingMailing Date ("Election Form Record Date"). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the a holder (or the beneficial owner through appropriate and customary documentation and instructions) of record outstanding Company Common Stock to elect, subject to provisions of Eligible this Section 1.5, to receive, on a per share basis, with respect to such holder's Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (andi) cash (shares as to which such election is made, upon completion the "Cash Election Shares") or (ii) ICBC Common Stock (shares as to which such election is made, the "Stock Election Shares"). A holder of the Parent Exchange, Parent LP Units) for all Company Common Stock may elect to receive a combination of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares ICBC Common Stock and cash with respect to which his shares of Company Common Stock. Notwithstanding the Exchange Agent has not received an foregoing, no holder of Company Common Stock may elect to receive ICBC Common Stock pursuant to the election procedures provided herein with respect to fewer than 100 shares of Company Common Stock. To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York City time, on the business 20th day immediately preceding following the Mailing Date (or such other time and date of as ICBC and the Company Shareholders Meeting may mutually agree) (the “"Election Deadline”) shall be deemed "); provided, however, that the Election Deadline may not to have made an Election.
occur on or after the Closing Date (c) BEPC and Acquisition Sub as defined in Section 10.1 hereof). ICBC shall make available one up to two separate Election Forms, or more such additional Election Forms as ICBC may reasonably be requested from time permit, to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the . The Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included with the Election Form. If a stockholder either (i) does not submit a properly completed Election Form in a timely fashion, or (ii) such revokes its Election has been made at or Form prior to the Election Deadline pursuant Deadline, the shares of Company Common Stock held by such stockholder shall be designated "No Election Shares." Shares of Company Common Stock held by holders who acquired such shares subsequent to the procedures set forth Election Deadline will be designated "No Election Shares." ICBC shall cause the Certificates described in clause (ii) of the immediately preceding sentence to be promptly returned without charge to the person submitting the Election Form upon written request to that effect from the person who submitted the Election Form. After an Election is validly made with respect Subject to any Eligible Company Shares, no further registration the terms of transfers this Agreement and of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have reasonable discretion to determine whether any election, revocation or not an Election shall have change has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither ICBC nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Buyer shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed together with a proxy statement at such time as the Company and the Buyer may agree (the “Mailing Date”) to holders each holder of record of Company Common Stock of record as of the close of business on the record date for notice of the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Special Meeting (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Stock Consideration (“Stock Election Shares”), (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., Albuquerque, New York Mexico time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and the Buyer shall agree) (the “Election Deadline”) (other than any shares of Company Common Stock that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe “No Election Shares.”
(c) BEPC and Acquisition Sub Buyer shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Buyer shall cause the Certificates representing Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form, except to the Election Deadline.
extent (eif any) Any Election shall have been a subsequent election is properly made only if (i) with respect to any or all of the applicable shares of Company Common Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither the Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within ten Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to which case as soon after the contraryEffective Time as practicable (and in no event more than ten Business Days after the Effective Time), the Buyer shall cause the Exchange Agent may, to effect the allocation among the holders of Company Common Stock of rights to receive Buyer Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “"Election Form”") shall be mailed together with the Proxy Statement or at such other time as the Company and Parent may agree (the "Mailing Date") to holders each holder of record of Company Common Stock of record as of the close of business on the record date for notice of the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”Special Meeting (the "Election Form Record Date").
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record shares of Eligible such holder's Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration ("Stock Election Shares"), (ii) the number of shares of New York such holder's Company Class C Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration ("Cash Election Shares"), or (iii) that such holder makes no election with respect to such holder's Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible "No Election Shares"). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Houston time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and Parent shall agree) (the “"Election Deadline”") (other than any shares of Company Common Stock that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe "No Election Shares."
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the Certificates representing Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form, except to the Election Deadline.
extent (eif any) Any Election shall have been a subsequent election is properly made only if (i) with respect to any or all of the applicable shares of Company Common Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub Purchaser or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within ten Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to which case as soon after the contraryEffective Time as practicable (and in no event more than ten Business Days after the Effective Time), Parent shall cause the Exchange Agent may, to effect the allocation among the holders of Company Common Stock of rights to receive Parent Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 1 contract
Sources: Merger Agreement (Noble Energy Inc)
Election Procedures. (a) An election form OLB and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk MDBC will include a copy of loss and title to Eligible Certificates shall pass, only upon proper delivery an Election Form with each copy of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be Prospectus/Proxy Statement mailed to holders of Company MDBC Common Stock in connection with the MDBC Common Stockholders’ Meeting, pursuant to which MDBC Common Stockholders will:
(i) Elect to receive the Common Stock Consideration with respect to all or a portion of record as of the record date for the Company Shareholders Meeting. As used herein, their shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C MDBC Common Stock (and, upon completion of the Parent Exchange, Parent LP Units“Common Stock Election Shares”); or
(ii) for all of Elect to receive the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Cash Consideration with respect to which the Exchange Agent has not received an effective, properly completed Election Form on all or before 5:00 p.m., New York time, on the business day immediately preceding the date a portion of the Company Shareholders Meeting their shares of MDBC Common Stock (the “Cash Election DeadlineShares”) ). OLB and MDBC shall be deemed not each use its reasonable efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make the Election Form available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares MDBC Common Stock during the period between the record date for the Company Shareholders MDBC Common Stockholders’ Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any holder’s Election shall have been properly made only if (i) the Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by the MDBC Certificate(s) to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such MDBC Certificate(s) as set forth in such Election Form from a firm which is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act) provided that such MDBC Certificate(s) are in fact delivered to the Exchange Agent by the time set forth in such guarantee of delivery). If a holder of MDBC Common Stock (i) does not submit a properly completed Election Form by before the Election Deadline or Deadline, (ii) such revokes an Election has been made at or Form prior to the Election Deadline and does not resubmit a properly completed Election Form prior to the Election Deadline, or (iii) fails to perfect his, her or its rights pursuant to Section 2.6(b) of this Agreement, then the procedures set forth in shares of MDBC Common Stock held by such holder shall be designated “No-Election Shares.” Nominee record holders who hold MDBC Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Common Stock Election FormShares, Cash Election Shares and No-Election Shares. After an For purposes of this Section 2.2, any Objecting MDBC Shares shall be deemed to be Cash Election is validly made Shares and, with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryshares, the Exchange Agent may, with the written agreement holders thereof shall in no event be classified as holders of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsReallocated Common Stock Shares.
Appears in 1 contract
Election Procedures. (a) Holders of Greensburg Bancshares Common Stock may elect to receive shares of First Guaranty Bancshares Common Stock or cash (in either case without interest) in exchange for their shares of Greensburg Bancshares Common Stock in accordance with the procedures set forth herein
(b) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) ), in such form as BEPC Greensburg Bancshares and Acquisition Sub First Guaranty Bancshares shall reasonably specify and as mutually agree (“Election Form”), shall be reasonably acceptable mailed no more than 40 Business Days and no less than 20 Business Days prior to the Company anticipated Merger Effective Date or on such earlier date as First Guaranty Bancshares and Greensburg Bancshares shall mutually agree (the “Mailing Date”) to each holder of record of Greensburg Bancshares Common Stock as of five Business Days prior to the Mailing Date (the “Election FormForm Record Date”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder such holder, (or the beneficial owner through appropriate and customary documentation and instructionsi) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) Cash Consideration for all of the Eligible Company Shares shares of Greensburg Bancshares Common Stock held by such holder, in accordance with Section 2.02(c)(i), (ii) to elect to receive the Stock Consideration for all of such shares, in accordance with Section 2.02(c)(ii), (iii) to elect to receive the Stock Consideration for a part of such holder’s Greensburg Bancshares Common Stock and the Cash Consideration for the remaining part of such holder’s Greensburg Bancshares Common Stock in accordance with Section 2.02(c)(iii), or (iv) to indicate that such record holder has no preference as to the receipt of Cash Consideration or Stock Consideration for such shares. The holders A holder of any Eligible Company Shares record of shares of Greensburg Bancshares Common Stock who holds such shares as nominee, trustee or in another representative capacity (a “Representative”) may submit multiple Election Forms, provided that each such Election Form covers all the shares of Greensburg Bancshares Common Stock held by such Representative for a particular beneficial owner. Any shares of Greensburg Bancshares Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made an election by submission to the Exchange Agent has not received of an effective, properly completed Election Form shall be deemed Non-Election Shares. The Election Form will advise Stockholders to consult with their tax advisors prior to making an election as to the form of Merger Consideration to receive.
(c) To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York Orleans time, on the business 25th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as First Guaranty Bancshares and Greensburg Bancshares may mutually agree) (the “Election Deadline”) ); provided, however, that the Election Deadline may not occur on or after the Closing Date. Greensburg Bancshares shall be deemed not use its reasonable best efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make available one up to two separate Election Forms, or more such additional Election Forms as First Guaranty Bancshares may reasonably be requested from time permit, to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Greensburg Bancshares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company . Greensburg Bancshares shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Greensburg Bancshares Common Stock covered by such Election Form, together with duly executed transmittal materials included with the Election Form. If a Greensburg Bancshares shareholder either (i) does not submit a properly completed Election Form in a timely fashion or (ii) revokes its Election Form prior to the Election Deadline (without later submitting a properly completed Election Form prior to the Election Deadline), the shares of Greensburg Bancshares Common Stock held by such shareholder shall be designated as Non-Election Shares. Any Election Form may be revoked or changed by the person submitting such Election has been made Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or change is actually received by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. First Guaranty Bancshares shall cause the Certificate or Certificates relating to any revoked Election Form to be promptly returned without charge to the procedures set forth in person submitting the Election Form to the Exchange Agent. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have discretion to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made. After an Election All Elections shall be revoked automatically if the Exchange Agent is validly made notified in writing by First Guaranty Bancshares or Greensburg Bancshares, upon exercise by First Guaranty Bancshares or Greensburg Bancshares of its respective or their mutual rights to terminate this Agreement to the extent provided under Article VII, that this Agreement has been terminated in accordance with Article VII.
(d) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of First Guaranty Bancshares Common Stock shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to First Guaranty Bancshares Common Stock shall be payable on or with respect to any Eligible Company Sharesfractional share interest, no further registration and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of transfers a shareholder of First Guaranty Bancshares. In lieu of the issuance of any such Eligible Company Shares fractional share, First Guaranty Bancshares shall pay to each former holder of Greensburg Bancshares Common Stock who otherwise would be entitled to receive a fractional share of First Guaranty Bancshares Common Stock, an amount in cash, rounded to the nearest cent and without interest, equal to the product of (i) the fraction of a share to which such holder would otherwise have been entitled and (ii) $18.62. For purposes of determining any fractional share interest, all shares of Greensburg Bancshares Common Stock owned by a Greensburg Bancshares shareholder shall be made on combined so as to calculate the transfer books maximum number of the Company unless and until whole shares of First Guaranty Bancshares Common Stock issuable to such Election is properly revoked Greensburg Bancshares shareholder.
(e) The Surviving Corporation shall pay for any Dissenters’ Shares in accordance with Section 12:131 of the procedures set forth in LBCL, and the Election Form. In holders thereof shall not be entitled to receive any Merger Consideration; provided, that if appraisal rights under Section 12:131 of the event LBCL with respect to any Election is made by a beneficial owner of Eligible Company SharesDissenters’ Shares shall have been effectively withdrawn or lost, such Election shares will thereupon cease to be treated as Dissenters’ Shares and shall be deemed automatically revoked in converted into the event of any transfer of such beneficial ownershipright to receive the Merger Consideration pursuant to Section 2.02.
(f) The reasonable good faith determination holders of Certificates (immediately prior to the Exchange Agent Merger) representing shares of Greensburg Bancshares Common Stock (any such certificate being hereinafter referred to as a “Certificate”) shall be conclusive and binding cease to have any rights as to whether or not an Election shall stockholders of Greensburg Bancshares, except such rights, if any, as they may have been properly made or revoked pursuant to applicable law and this Agreement, including the Election Form, right to receive the Merger Consideration with respect to the shares represented by such Certificate.
(g) The shares of First Guaranty Bancshares Common Stock to be issued as Merger Consideration to when Elections and revocations holders of Elections were received by Greensburg Bancshares Common Stock in the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub Merger will not be registered under the Securities Act or the Exchange Agent shall be registered or qualified for sale under any obligation to notify any person of any defect state securities Law and cannot be resold without registration or an exemption under the Securities Act. Such shares will therefore be “restricted securities” as defined in Rule 144 under the Securities Act. Each certificate representing First Guaranty Bancshares Common Stock issued in the Merger shall bear a completed Election Form. Notwithstanding anything in this Section 4.02 to restrictive legend referencing the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsSecurities Act.
Appears in 1 contract
Election Procedures. (a) An Holders of Fidelity Common Stock may elect to receive shares of National City Common Stock or cash (in either case without interest) in exchange for their shares of Fidelity Common Stock in accordance with the following procedures. Holders of Certificates representing more than one share of Fidelity Common Stock may elect to receive Stock Consideration for some of their shares and Cash Consideration for the balance of their shares. Shares of Fidelity Common Stock as to which Cash Consideration has been made are referred to herein as "Cash Election Shares". Shares of Fidelity Common Stock as to which a Stock Consideration has been made are referred to as "Stock Election Shares". Shares of Fidelity Common Stock as to which no election has been made (or as to which an Election Form is not properly returned or timely completed) are referred to herein as "No-Election Shares". The aggregate number of shares of Fidelity Common Stock with respect to which a Stock Election has been made is referred to herein as the "Stock Election Number". Any Dissenting Shares shall be deemed to be Cash Election Shares and the holders thereof shall in no event receive consideration comprised of National City Common Stock with respect to such shares.
(b) National City shall appoint National City Bank, or such other Person with whom National City may enter into an agreement (the "Exchange Agent"), whereby the Exchange Agent shall agree to act as agent for purposes of mailing and receiving Election Forms, tabulating the results and distributing consideration to Fidelity's stockholders in exchange for certificates that immediately prior to the Effective Time evidenced shares of Fidelity Common Stock ("Old Certificates") for the Merger Consideration. The Exchange Agent shall mail an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates an Old Certificate shall pass, only upon proper delivery of such Eligible Certificates Old Certificate to the Exchange Agent) ), in such form as BEPC Fidelity and Acquisition Sub National City shall reasonably specify and as shall be reasonably acceptable mutually agree (the "Election Form"), no later than fifteen (15) Business Days prior to the Company anticipated Effective Time or on such earlier date as National City and Fidelity may mutually agree (the “"Mailing Date") to each holder of record of Fidelity Common Stock as of five (5) Business Days prior to the Mailing Date (the "Election Form”) shall Form Record Date"); provided, however, that Election Forms need not be mailed prior to the receipt of required approvals of Government Authorities (exclusive of the expiration or termination of statutory waiting periods). The Exchange Agent shall make available an additional Election Form to all Persons who become record holders of Company Fidelity Common Stock of record as of between the record date for Election Form Record Date and the Company Shareholders MeetingElection Deadline. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit such holder, subject to the allocation and election procedures set forth in Section 3.3, (i) to elect to receive the Cash Consideration for all of the shares of Fidelity Common Stock held by such holder, in accordance with Section 3.1(a)(iii), (ii) to elect to receive the Stock Consideration for all of such shares (a "Stock Election"), in accordance with Section 3.1(iii), (iii) to elect to receive the Stock Consideration for a part of such holder's Fidelity Common Stock, or (iv) to indicate that such record holder has no preference as to the recipient of cash or National City Common Stock for such shares, which shall be deemed to be No-Election Shares. All Dissenting Shares shall be deemed shares subject to a Cash Election, and with respect to such shares the holders thereof shall in no event receive consideration comprised of National City Common Stock.
(c) To be effective, a properly completed and executed Election Form shall be submitted to the Exchange Agent on or before 4:00 p.m., Cleveland, Ohio time, on a date to be decided by National City and reasonably acceptable to Fidelity (which date shall not be earlier than fifteen (15) Business Days after the Mailing Date and no later than the Effective Time) (the "Election Deadline"). An election by a holder of shares of Fidelity Common Stock shall be validly made only if the Exchange Agent shall have received an Election Form properly completed and executed (with the signature or signatures thereon guaranteed as required by the Election Form) by such stockholder accompanied either by the Old Certificate(s) representing all shares of Fidelity Common Stock owned by such stockholder, duly endorsed in blank or otherwise in form acceptable for transfer on the books of Fidelity, or by an appropriate guaranty of delivery in the form customarily used in transactions of this nature from a member of a national securities exchange or a member of the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States. National City shall have the right to make reasonable determinations and to establish reasonable procedures (not inconsistent with the terms of this Agreement) in guiding the Exchange Agent in its determination as to validity of Election Forms.
(d) Two or more holders of shares of Fidelity Common Stock who are determined to constructively own the shares of Fidelity Common Stock owned by each other by virtue of Section 318(a) of the Code and who so certify to National City's satisfaction, and any single holder of shares of Fidelity Common Stock who holds his or her shares in two or more different names and who so certifies to National City's satisfaction, may submit a joint Election Form covering the aggregate shares of Fidelity Common Stock owned by all such holders or by such single holder as the case may be. For all purposes of this Agreement, each such group of holders, and each such single holder, who submits a joint Election Form shall be treated as a single holder of shares of Fidelity Common Stock.
(e) Record holders of shares of Fidelity Common Stock who are nominees may submit a separate Election Form for each beneficial owner for whom such record holder is a nominee; provided, however, that on the request of National City, such record holder shall certify to the satisfaction of National City that such record holder holds such shares of Fidelity Common Stock as nominee for the beneficial owner through appropriate and customary documentation and instructionsthereof. For purposes of this Agreement, each beneficial owner for which an Election Form is submitted will be treated as a separate holder of shares of Fidelity Common Stock, subject, however, to Section 3.2(d) above dealing with joint Election Forms.
(f) Any holder of record shares of Eligible Company Shares as of immediately Fidelity Common Stock who has made an election by submitting an Election Form to the Exchange Agent may at any time prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by change such holder. The holders of any Eligible Company Shares with respect to which 's election by submitting a revised Election Form, properly completed and signed, that is received by the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on prior to the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”. Any holder of shares of Fidelity Common Stock may at any time prior to the Election Deadline revoke his or her election and withdraw his or her Old Certificate(s) shall be deemed not for shares of Fidelity Common Stock deposited with the Exchange Agent by written notice to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time the Exchange Agent received by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form Business Day prior to the Election Deadline.
(eg) Any Election In the event of the termination of this Agreement after holders of shares of Fidelity Common Stock have deposited their Old Certificate(s) with the Exchange Agent, National City and Fidelity shall have been properly made only if (i) jointly and promptly instruct the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to return all Old Certificates to the Election Deadline pursuant Persons who deposited the same. Holders of shares of Fidelity Common Stock shall continue to have the procedures set forth in the Election Form. After an Election is validly made right to vote and to receive all dividends paid on shares of Fidelity Common Stock deposited by them with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to until the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsEffective Time.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to a bank or trust company designated by Buyer and reasonably satisfactory to the Company (the "Exchange Agent")) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company and Buyer shall mutually agree (the “"Election Form”) "), shall be mailed no later than 15 calendar days prior to holders the anticipated Effective Time (the "Mailing Date") to each holder of record of Company Common Stock as of five business days prior to the Mailing Date (the "Election Form Record Date"). Each Election Form shall permit each holder of record of Company Common Stock as of the Election Form Record Date (or in the case of nominee record date holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all of such holder's shares (a "Cash Election"), (ii) elect to receive the Company Shareholders Meeting. As used hereinStock Consideration for all of such holder's shares (a "Stock Election"), (iii) elect to receive the Cash Consideration with respect to one half of such holder's shares and the Stock Consideration with respect to one half of such holder's shares (a "Mixed Election") or (iv) make no election with respect to the receipt of the Cash Consideration or the Stock Consideration (a "Non-Election"), provided, that, notwithstanding any other provision of this Agreement, other than paragraph (e) of this Section 3.5, 50% of the total number of shares of Company Common Stock issued and outstanding and not held by at the Effective Time, including any Parent Stockholder Dissenting Shares but excluding any Treasury Stock (the "Stock Conversion Number"), shall be referred to as “Eligible converted into the Stock Consideration and the remaining outstanding shares of Company Shares”.
(b) Each Election Form Common Stock shall permit be converted into the holder (or the beneficial owner through appropriate and customary documentation and instructions) Cash Consideration. Holders of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (andwho hold such shares as nominees, upon completion trustees or in other representative capacities may submit multiple Election Forms, provided, that such nominee, trustee, or other representative certifies that each such Election Form covers all the shares of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares Common Stock held by such holdernominee, trustee, or other representative for a particular beneficial owner. Shares of Company Common Stock as to which a Cash Election (including, pursuant to a Mixed Election) has been made are referred to herein as "Cash Election Shares." Shares of Company Common Stock as to which a Stock Election has been made (including, pursuant to a Mixed Election) are referred to herein as "Stock Election Shares." Shares of Company Common Stock as to which no election has been made (or as to which an Election Form is not returned properly completed) are referred to herein as "Non-Election Shares." The holders aggregate number of any Eligible shares of Company Shares Common Stock with respect to which a Stock Election has been made is referred to herein as the Exchange Agent has not received an effective, properly completed "Stock Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an ElectionNumber.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company " Any Dissenting Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made be Cash Election Shares, and the holders thereof shall in no Election, unless a subsequent Election is submitted by the holder event receive consideration comprised of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made Buyer Common Stock with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipshares.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (aA) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of WBC Common Stock shall pass, only upon proper delivery of such Eligible Certificates Certificates, or customary affidavits and indemnification regarding the loss or destruction of such certificates, to the Exchange Agent) in such form as BEPC WBC and Acquisition Sub Frontier shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall be mailed with the Proxy Statement on the date of mailing of the Proxy Statement or on such other date as Frontier and WBC shall mutually agree (the “Mailing Date”) to holders each holder of Company record of WBC Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(bB) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to (x) elect (an “Election”) to receive shares (1) the Per Share Stock Consideration in respect of New York Company Class C all of such holder’s WBC Common Stock (and, upon completion “Stock Election Shares”); (2) the Per Share Cash Consideration in respect of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder’s WBC Common Stock (“Cash Election Shares”); or (3) the Per Share Stock Consideration in respect of that portion to such holder’s shares of WBC Common Stock equal to the Stock Percentage (as defined below), rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s shares of WBC Common Stock equal to the Cash Percentage (as defined below), rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”); or (y) to make no election with respect to such holder’s WBC Common Stock (“No Election Shares”). The holders of any Eligible Company Shares Any WBC Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York timePacific Time, on the business day immediately preceding date prior to the Determination Date (or such other time and date of the Company Shareholders Meeting as Frontier and WBC may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe “No Election Shares.
” The term “Cash Percentage” shall mean the quotient, rounded to the nearest thousandth, obtained by dividing (cx) BEPC and Acquisition Sub shall make available one or more Election Forms the quotient obtained by dividing the Total Cash Amount by the Per Share Consideration, by (y) the total number of shares of WBC Common Stock outstanding as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior Determination Date. “Stock Percentage” shall mean the amount equal to one (1) minus the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified hereinCash Percentage.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. Unitrin and the Company shall prepare a form (athe "Election Form") An election form pursuant to which each record holder of Shares may elect in accordance with the provisions of this Section 1.9 (hereinafter called an "Election"), and other appropriate and customary transmittal materials subject to the allocation provisions of Section 1.10, to receive for each Share owned by such holder (which shall specify that delivery i) the Per Share Cash Amount (a "Cash Election") or (ii) the Per Share Stock Amount (a "Stock Election"). A holder of shares of Company B Stock shall be effectedentitled to make Elections, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates with respect to the Exchange Agent) in number of shares of Company B Stock owned by such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable holder, for the number of Shares equal to the Company (the “Election Form”) shall be mailed to holders number of shares of Company Common A Stock into which such shares of Company B Stock are to be converted as provided in Section 1.7 above. The Company shall mail the Election Form to each of its shareholders of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Shareholder Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified defined in Section 2.4 herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein). If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any A shareholder's Election shall have been properly made only if (i) the Exchange Agent (as defined in Section 1.11 below) shall have received a received, by 5:00 p.m., Central Time, on the date of the Company Shareholders' Meeting (the "Election Date"), an Election Form properly completed and signed. Any shareholder of the Company who fails to properly make the required election shall be deemed to have made a Stock Election Form with respect to all Shares (other than Dissenting Reliable Shares) owned by such holder. Dissenting Reliable Shares shall not be converted into the Merger Consideration and shall be treated as provided in Section 1.15 below. Any shareholder may at any time prior to the Election Date change his Election by written notice received by the Election Deadline or (ii) such Election has been made Exchange Agent at or prior to the Election Deadline pursuant to the procedures set forth in the Date accompanied by a properly completed, later dated Election Form. After an Election is validly made with respect Any shareholder may at any time prior to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election FormDate revoke his Election by written notice received by the Exchange Agent at or prior to the Election Date. In the event any Any Election is made by a beneficial owner of Eligible Company Shares, such Election relating to Shares which become Dissenting Reliable Shares shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination as of the Exchange Agent shall be conclusive Election Date. Any Election that has been revoked and binding as to whether or not an otherwise replaced by a later dated Election shall have been properly made or revoked pursuant Form prior to the Election FormDate (other than an Election relating to Shares which become Reliable Dissenting Shares) shall be deemed to be a Stock Election. Any such revoked Election, together with all other Elections that are deemed to be Stock Elections as provided in the penultimate sentence in the immediately preceding paragraph, are hereinafter referred to when Elections and revocations of Elections were received by as "Default Stock Elections." Unitrin will have the reasonable discretion, which it may delegate in whole or in part to the Exchange Agent Agent, (i) to determine whether any Election Form has been properly completed, signed and as to whether submitted or revoked and (ii) to disregard immaterial defects in a completed any Election Form. None The decision of Parent, BEPC, Acquisition Sub Unitrin (or the Exchange Agent) in such matters shall be conclusive and binding. Neither Unitrin nor the Exchange Agent shall will be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 Form submitted to the contrary, the Exchange Agent. The Exchange Agent may, with shall also make all computations under the written agreement allocation procedures described below to determine any allocation of BEPC the Merger Consideration under this Agreement and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as all such computations shall be necessary or desirable to administer such Electionsconclusive and binding on the Company and its shareholders.
Appears in 1 contract
Sources: Merger Agreement (Unitrin Inc)
Election Procedures. (a) An In the event that Buyer elects for a portion of the Merger Consideration to be paid in cash in accordance with Section 2.1(b), an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC a bank or trust company designated by Buyer and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable satisfactory to the Company (the “Exchange Agent”)) in such form as the Company and Buyer shall mutually agree (the “Election Form”) ), shall be mailed no later than five Business Days after Buyer delivers the Buyer Cash Election to holders the Company or such other date as the Company and Buyer shall mutually agree (the date on which such mailing occurs being referred to as the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record date for the Company Shareholders Meetingfive Business Days prior to such mailing. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder of record of Company Common Stock (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation) to (i) elect to receive the Cash Consideration for all or a portion of record such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a portion of Eligible Company Shares as of immediately prior such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the Election Deadline to elect receipt of the Cash Consideration or the Stock Consideration (an a “Non-Election”). A record holder acting in different capacities or acting on behalf of other Persons (as defined in Section 9.3) in any way will be entitled to receive submit an Election Form for each capacity in which such record holder so acts with respect to each Person for which it so acts. Shares of Company Common Stock as to which a Cash Election has been made are referred to herein as “Cash Election Shares.” Shares of Company Common Stock as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares of Company Common Stock as to which no election has been made (or as to which an Election Form is not properly completed and returned in a timely fashion) are referred to herein as “Non-Election Shares.” The aggregate number of shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which a Stock Election has been made is referred to herein as the Exchange Agent has not received an “Stock Election Number.”
(b) To be effective, a properly completed Election Form shall be received by the Exchange Agent on or before 5:00 p.m., New York timeEastern Time, on the business 25th day immediately preceding following the Mailing Date (or such other time and date of as mutually agreed upon by the Company Shareholders Meeting parties (which date shall be publicly announced by Buyer as soon as practicable prior to such date)) (the “Election Deadline”) shall be deemed not ), accompanied by the Certificates as to have which such Election Form is being made or by an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms appropriate guarantee of delivery of such Certificates, as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to set forth in the Election DeadlineForm, and from a member of any registered national securities exchange or a commercial bank or trust company in the Company shall provide United States (provided, however, that such Certificates are in fact delivered to the Exchange Agent all information reasonably necessary for it by the time required in such guarantee of delivery; failure to perform as specified herein.
deliver shares of Company Common Stock covered by such guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made election, unless otherwise determined by Buyer, in its sole discretion). If a holder of Company Common Stock either (di) Any does not submit a properly completed Election Form may be revoked in a timely fashion or (ii) revokes the holder’s Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless (without later submitting a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any ), the shares of Company Common Stock held by such holder shall be designated Non-Election shall have been properly made only if (i) Shares. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(c) To the extent necessary, and subject to Section 1.9, the allocation among the holders of shares of Company Common Stock of rights to receive the Cash Consideration and the Stock Consideration will be made as set forth in this Section 4.02 to the contrary, 2.4(c) (with the Exchange Agent mayto determine, consistent with Section 2.4(a), whether fractions of Cash Election Shares, Stock Election Shares or Non-Election Shares, as applicable, shall be rounded up or down).
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration, and, subject to Section 2.3 hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder’s Stock Election Shares being converted into the right to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and the Cash Election Shares shall be necessary treated in the following manner:
(A) if the Shortfall Number is less than or desirable equal to administer the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.3 hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such Electionsholder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration, and, subject to Section 2.3 hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 1 contract
Election Procedures. (ai) An election form and other appropriate and customary transmittal materials (the "Election Form"), which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing FMAC Common Stock shall pass, only upon proper delivery of such Eligible Certificates certificates to an exchange agent designated by Bay View (the "Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”") shall be mailed approximately 25 days prior to holders the anticipated Effective Time ("Mailing Date") to each holder of Company record of FMAC Common Stock of record as of five business days prior to the record date for Mailing Date (the Company Shareholders Meeting"Election Form Record Date"). As used herein, shares Bay View shall cause an Election Form to be sent to each holder of Company FMAC Common Stock issued who FMAC advises Bay View has become a holder of FMAC Common Stock after the Election Form Record Date. Bay View shall determine the anticipated Effective Time (the "Anticipated Effective Time") in its sole discretion and outstanding and the failure of the Effective Time to occur at the Anticipated Effective Time shall not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”affect the time periods which are established for purposes of these election procedures.
(bii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to designate the number of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C such holder's FMAC Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the holder elects to receive only the Per Share Stock Consideration ("Stock Election Shares"), and to designate the number of shares of such holder's FMAC Common Stock with respect to which the holder elects to receive only the Per Share Cash Consideration ("Cash Election Shares").
(iii) Each Election Form shall require the holder to disclose the number of shares of Bay View Common Stock beneficially owned by the holder for purposes of compliance with the Bank Holding Company Act and Regulation Y, 12 C.F.R. Part 225, thereunder.
(iv) Any FMAC Common Stock with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, p.m. on the business 20th day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Bay View and FMAC may mutually agree) (the “"Election Deadline”") shall be deemed not to have made an Electionbe "No Election Shares.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) " Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline or (ii) such Deadline. An Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election Form shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
properly completed only if accompanied by one or more certificates (f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.3
Appears in 1 contract
Sources: Merger Agreement (Franchise Mortgage Acceptance Co)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing First Federal Common Stock shall pass, only upon proper delivery of such Eligible Certificates certificates to the exchange agent designated by Holding Company, or to the Holding Company in its capacity as exchange agent, as determined by the Holding Company (the "Exchange Agent) "), in such form as BEPC First Federal and Acquisition Sub the Holding Company shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “"Election Form”") shall be mailed approximately 25 days prior to holders the anticipated Effective Date or on such other date as First Federal and the Holding Company shall mutually agree (the "Mailing Date") to each holder of Company record of First Federal Common Stock of record as of five business days prior to the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”Mailing Date ("Election Form Record Date").
(b) Each Election Form shall specify the amount of Merger Consideration receivable for each share of First Federal Common Stock in the Cash Distribution and the Stock Distribution and shall permit the a holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect to receive, as provided in Section 2.2 of this Agreement, (an “Election”i) to receive shares of New York Company Class C Common the Stock (and, upon completion of the Parent Exchange, Parent LP Units) Distribution for all of the Eligible Company Shares held by his shares (in which case, such holder. The holders 's shares shall be deemed to be and shall be referred to herein as "Stock Election Shares"), (ii) the Cash Distribution for certain designated shares (in which case, such holder's shares so designated shall be deemed to be and shall be referred to herein as "Cash Election Shares") with the remaining shares being converted to the Stock Distribution as Stock Election Shares, or (iii) the Cash Distribution for all of any Eligible Company Shares his shares.
(c) Any shares of First Federal Common Stock with respect to which the holder thereof shall not, as of the Election Deadline (as defined below), have made an election to receive either the Cash Distribution or the Stock Distribution (such holder's shares being deemed to be and shall be referred to herein as "No Election Shares") by submission to the Exchange Agent has not received of an effective, properly completed Election Form shall be deemed to be Cash Election Shares. Any holder of 1% or more of First Federal Common Stock (determined as of the Effective Date) that shall not, on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide have delivered to the Exchange Agent all information reasonably necessary for it a tax certification confirming his present intention not to perform as specified herein.
sell, exchange, or otherwise dispose of any Holding Company Common Stock (da "Tax Certification") Any Election Form may be revoked prior to received in the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form Merger shall be deemed to have made no Electiona timely election to receive the Cash Distribution for all of his shares, unless and all shares of First Federal Common Stock held by such holder shall be deemed to be Cash Election Shares for all purposes of this Agreement, including Section 2.1. (The parties acknowledge that the foregoing sentence will preclude a subsequent Election is submitted by the holder that acquires additional shares of First Federal Common Stock and becomes a holder of 1% or more of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by shares after the Election Deadline or (iifrom receiving the Stock Distribution.) such "Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company SharesDeadline" means 5:00 p.m., no further registration of transfers of such Eligible Company Shares shall be made local time, on the transfer books of 20th day following the Mailing Date, or such other time and date as the Holding Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election First Federal shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipmutually agree.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: Merger Agreement (Bryan College Station Financial Holding Co)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Centrue Financial and Acquisition Sub ICB shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the an “Election Form”) shall be mailed no later than the Mailing Date (as defined below) to holders of Company Common Stock of record each ICB Shareholder as of the record date for the Company Shareholders MeetingEffective Time. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder The “Mailing Date” shall be referred to as “Eligible Company Shares”the date that is five (5) Business Days after the Effective Time.
(b) Each Election Form shall permit entitle the holder ICB Shareholder (or the beneficial owner of ICB Common Stock through appropriate and customary documentation and instructions) to: (i) elect to receive the Stock Consideration for all of such holder’s shares (a “Stock Election”); (ii) elect to receive the Cash Consideration for all of such holder’s shares (a “Cash Election”); (iii) elect to receive the Stock Consideration with respect to some of such holder’s shares and the Cash Consideration with respect to such holder’s remaining shares (a “Mixed Election”); or (iv) make no valid election as to the receipt of the Cash Consideration or the Stock Consideration (a “Non-Election”). Holders of record of Eligible Company Shares shares of ICB Common Stock who hold such shares as of immediately prior to the Election Deadline to elect nominees, trustees or in other representative capacities (an a “ElectionShare Representative”) to receive may submit multiple Election Forms, provided that such Share Representative certifies that each such Election Form covers all the shares of New York Company Class C ICB Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holderthat Share Representative for a particular beneficial owner. The holders Shares of any Eligible Company Shares with respect ICB Common Stock as to which the Exchange Agent a Cash Election has not received an been made (including pursuant to a Mixed Election) are referred to herein as “Cash Election Shares.” Shares of ICB Common Stock as to which a Stock Election has been made (including pursuant to a Mixed Election) are referred to herein as “Stock Election Shares.” Shares of ICB Common Stock as to which no election has been made are referred to as “Non-Election Shares.” For purposes of this Section, Dissenting Shares shall be deemed to be Cash Election Shares.
(c) To be effective, a properly completed Election Form must be received by Centrue Bank, in its capacity as exchange agent for the parties to this Agreement (the “Exchange Agent”), on or before 5:00 p.m., New York time, p.m. on the business day immediately preceding thirtieth (30th) Business Day following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Centrue Financial and ICB may mutually agree) (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein). If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Old Certificates (iior customary affidavits and, if required by Centrue Financial or the Exchange Agent, indemnification and a surety bond, regarding the loss or destruction of such Old Certificates or the guaranteed delivery of such Old Certificates) representing all shares of ICB Common Stock covered by such Election has been made at or prior Form, together with a duly executed Transmittal Letter. Subject to the Election Deadline pursuant to the procedures set forth in terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have reasonable discretion to determine whether or not an Election shall have any election has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form. None , and any good faith decisions of Parentthe Exchange Agent regarding such matters shall be binding and conclusive.
(d) Within ten (10) Business Days after the Election Deadline, BEPCCentrue Financial shall cause the Exchange Agent to effect the allocation among ICB Shareholders of rights to receive the Cash Consideration and the Stock Consideration as follows:
(i) If the Aggregate Stock Election Number exceeds the Required Stock Election Number, Acquisition Sub or then all Cash Election Shares and all Non-Election Shares will be converted into the right to receive the Cash Consideration, and, with respect to each holder of Stock Election Shares, then:
(A) that number of Stock Election Shares which is equal to the product obtained by multiplying (1) the Stock Election Excess Amount by (2) such shareholder’s Stock Election Percentage (such amount being referred to as such shareholder’s “Individual Stock Excess Amount”), shall be converted into the right to receive the Cash Consideration; and
(B) that number of Stock Election Shares equal to the difference between (1) such shareholder’s Individual Stock Election Number, less (2) such shareholder’s Individual Stock Excess Amount, shall be converted into the right to receive the Stock Consideration.
(ii) If the Aggregate Cash Election Number exceeds the Required Cash Election Number, then all Stock Election Shares will be converted into the right to receive the Stock Consideration, and, with respect to each holder of Cash Election Shares and Non-Election Shares, then:
(A) that number of Cash Election Shares and Non-Election Shares which is equal to the product obtained by multiplying (1) the Cash Election Excess Amount by (2) such shareholder’s Cash Election Percentage (such amount being referred to as such shareholder’s “Individual Cash Excess Amount”), shall be converted into the right to receive the Stock Consideration; and
(B) that number of Cash Election Shares and Non-Election Shares which is equal to the difference between (1) such shareholder’s Individual Cash Election Number, less (2) such shareholder’s Individual Cash Excess Amount, shall be converted into the right to receive the Cash Consideration.
(iii) If the Aggregate Stock Election Number is equal to the Required Stock Election Number, then all Stock Election Shares will be converted into the right to receive the Stock Consideration, and all Cash Election Shares and Non-Election Shares will be converted into the right to receive the Cash Consideration.
(iv) If all ICB Shareholders make only a Stock Election, such that the Aggregate Stock Election Number is equal to one hundred percent (100%) of the Outstanding ICB Shares, then the Exchange Agent shall be under any obligation allocate the Cash Consideration and the Stock Consideration on a pro rata basis among all ICB Shareholders, such that following such allocation fifty percent (50%) of the Outstanding ICB Shares are converted into the right to notify any person receive the Stock Consideration, and fifty percent (50%) of any defect in the Outstanding ICB Shares are converted into the right to receive the Cash Consideration.
(v) If all ICB Shareholders make only a completed Cash Election, such that the Aggregate Cash Election Form. Notwithstanding anything in this Section 4.02 Number is equal to one hundred percent (100%) of the contraryOutstanding ICB Shares, then the Exchange Agent may, with shall allocate the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections Cash Consideration and the revocation Stock Consideration on a pro rata basis among all ICB Shareholders, such that following such allocation fifty percent (50%) of Elections as shall be necessary or desirable the Outstanding ICB Shares are converted into the right to administer such Electionsreceive the Stock Consideration, and fifty percent (50%) of the Outstanding ICB Shares are converted into the right to receive the Cash Consideration.
Appears in 1 contract
Election Procedures. (a) An Not less than 20 days prior to the anticipated Effective Time (the “Mailing Date”), an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub CME shall reasonably specify and as shall be reasonably acceptable to the Company GFI (the “Election Form”) shall be mailed to holders each holder of Company record of shares of GFI Common Stock of record as of five Business Days prior to the record date for Mailing Date (the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner Beneficial Owner through appropriate and customary documentation and instructions) to specify (i) the number of record shares of Eligible Company Shares as such holder’s GFI Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (the “Stock Election Shares”), (ii) the number of immediately prior shares of such holder’s GFI Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (the “Cash Election Deadline to elect (an “ElectionShares”) or (iii) that such holder makes no election with respect to receive shares of New York Company Class C such holder’s GFI Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder“No Election Shares”). The holders of any Eligible Company Shares Any GFI Common Stock with respect to which the Exchange Agent has does not received receive an effective, properly completed Election Form on or before 5:00 p.m., New York time, on during the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) Period shall be deemed not to have made an Electionbe No Election Shares. CME shall publicly announce (which public announcement may be on a Form 8-K filed with the SEC) the anticipated Election Deadline at least five Business Days prior to the anticipated Effective Time. If the Effective Time is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and CME shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(c) BEPC and Acquisition Sub CME shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial ownersBeneficial Owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to GFI Common Stock during the Election DeadlinePeriod, and the Company GFI shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form during the Election Period. Any Election Form may be revoked or changed by the Election Deadline or (ii) Person submitting such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were by written notice received by the Exchange Agent during the Election Period. In the event an Election Form is revoked during the Election Period, the shares of GFI Common Stock represented by such Election Form shall become No Election Shares, except to the extent (if any) a subsequent election is properly made during the Election Period with respect to any or all of such shares of GFI Common Stock. Subject to the terms of this Agreement and as of the Election Form, the Exchange Agent shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub CME or GFI or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates or Book-Entry Shares theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates or Book-Entry Shares to the Exchange AgentAgent (as defined below)) in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company shall mutually agree (the “Election Form”) shall be mailed 35 days prior to holders the anticipated Effective Date or on such other date as the Company and Parent shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe “No Election Shares.”
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates or evidence of Book-Entry Shares (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline and no new Election Form is subsequently submitted prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the Certificates representing such Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent as to such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Parent nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within ten business days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to the contrarywhich case as soon thereafter as practicable, Parent shall cause the Exchange Agent may, to effect the allocation among the holders of Company Common Stock of rights to receive Parent Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 1 contract
Sources: Merger Agreement (Tower Bancorp Inc)
Election Procedures. Each Seller shall have the right, subject to the limitations set forth in this Article 2, to submit an election in accordance with the following procedures:
(a) An election Each Seller must specify in a request in the form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form attached hereto as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect Exhibit G (an “ElectionElection Agreement”):
(i) the respective number of Existing Company Shares owned by such Seller in respect of which such Seller desires to receive shares of New York (in each case, if any):
(x) the Per Ordinary Share Cash Consideration (any such election, a “Cash Election for Shares,” and each Existing Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Share with respect to which such Cash Election was made, a “Cash Electing Share”),
(y) the Exchange Agent has not received an effectivePer Ordinary Share Unit Consideration (any such election, properly completed a “Unit Election Form on or before 5:00 p.m.for Shares,” and each Existing Company Share with respect to which such Unit Election for Shares was made, New York timea “Unit Electing Share”), on or
(z) the business day immediately preceding the date of the Per Ordinary Share SPAC Stock Consideration (any such election, a “SPAC Stock Election for Shares,” and each Existing Company Shareholders Meeting (the Share with respect to which such SPAC Stock Election for Shares was made, a “Election DeadlineSPAC Stock Electing Share”) ; provided, that if, as determined immediately prior to Closing, the number of Existing Company Shares in respect of which Sellers have made a Cash Election for Shares would cause the aggregate Per Share Cash Consideration to exceed the Total Cash Consideration for Ordinary Shares, the number of Existing Company Shares subject to a Cash Election for Shares shall be automatically adjusted, pro rata based on each electing Seller’s aggregate ownership, such that the aggregate Per Share Cash Consideration shall equal the Total Cash Consideration for Ordinary Shares and, with respect to any Existing Company Shares so deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms alternate election as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) a result of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadlinesuch adjustment, the holder of Eligible Company Shares represented by such Election Form Sellers shall be deemed to have made no Election, unless a subsequent the alternate Unit Election is submitted by the holder of such Eligible Company for Shares in accordance with the procedures or SPAC Stock Election for Shares as set forth in the such Seller’s Election Form prior to the Election Deadline.Agreement; and
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of the Loan Notes owned by such Eligible Company Shares shall be made on Seller whether such Seller desires to receive with respect to such Seller’s Loan Notes:
(x) an amount in cash equal to the transfer books total principal and accrued interest as of the Company unless and until Closing Date with respect to such Loan Notes (“Loan Note Cash Consideration”) (any such election, a “Cash Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.for Loan Notes”),
(fy) The reasonable good faith determination a number of Units equal to the total principal and accrued interest as of the Exchange Agent shall be conclusive and binding as Closing Date with respect to whether or not an such Loan Notes divided by $10.00 per Unit (“Loan Notes Unit Consideration”) (any such election, a “Unit Election shall have been properly made or revoked pursuant to the Election Formfor Loan Notes”), as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.or
Appears in 1 contract
Sources: Business Combination Agreement (GS Acquisition Holdings Corp II)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which Computershare, Inc. shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form serve as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company exchange agent (the “Election FormExchange Agent”) shall be mailed to holders of Company Common Stock of record as for the payment and exchange of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”Merger Consideration.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) Holders of record of Eligible Company Shares HTB Common Stock have the right to submit an Election Form (defined below) specifying the number of shares of HTB Common Stock, if any, held by such Holder that such Holder desires to have converted into the right to receive the Stock Consideration (a “Stock Election”) and the number of shares of HTB Common Stock that the Holder desires to have converted into the right to receive the Cash Consideration (a “Cash Election”).
(c) An election form (“Election Form”), together with a Letter of Transmittal (as of immediately defined in Section 2.08), shall be mailed no less than twenty (20) Business Days prior to the Election Deadline to elect (an as defined below) or on such earlier date as BFC and HTB shall mutually agree (the “ElectionMailing Date”) to receive each Holder of record of HTB Common Stock as of five (5) Business Days prior to the Mailing Date. Holders of record of shares of New York Company Class C HTB Common Stock who hold such shares as nominees, trustees or in other representative capacities (anda “Representative”) may submit multiple Election Forms, upon completion provided that each such Election Form covers all the shares of HTB Common Stock held by each Representative for a particular beneficial owner. Any shares owned by a Holder who has not, as of the Parent ExchangeElection Deadline, Parent LP Units) for all of the Eligible Company Shares held made an election by such holder. The holders of any Eligible Company Shares with respect submission to which the Exchange Agent has not received of an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub Non-Election Shares. BFC shall make available one or more Election Forms as may reasonably be requested in writing from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares HTB Common Stock between the record date for the Company Shareholders Meeting initial mailing of Election Forms and the close of business on the business day Business Day prior to the Election Deadline, and the Company HTB shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any The term “Election Form may be revoked Deadline”, as used below, shall mean 5:00 p.m., Eastern time, on the later of (i) the date of the HTB Meeting and (ii) the date that BFC and HTB shall agree is as near as practicable to five (5) Business Days prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth thereinexpected Closing Date. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline accompanied by one or more Certificates (iior customary affidavits and indemnification regarding the loss or destruction of such certificates) representing all the shares of HTB Common Stock covered by such Election has been made Form. Any Election Form may be revoked or changed by the Person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or change is actually received by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. Shares of HTB Common Stock held by holders who acquired such shares subsequent to the procedures set forth Election Deadline will be designated Non-Election Shares. In addition, if a Holder of HTB Common Stock either (1) does not submit a properly completed Election Form in a timely fashion or (2) revokes its Election Form prior to the Election Deadline and fails to file a new properly completed Election Form before the deadline, such shares shall be designated Non-Election Shares. Subject to the terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have discretion to determine whether any election, revocation or not an Election shall have change has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither BFC nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: Merger Agreement (Bank First Corp)
Election Procedures. (a) An election form Election forms and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofor representing shares of Peoples Common Stock (“Certificates”) and any non-certificated shares of Peoples Common Stock (“Book Entry Shares”) shall pass, only upon proper delivery of such Eligible Certificates or Book Entry Shares to an exchange agent designated by Summit (the “Exchange Agent”)) and acceptable to Peoples in its reasonable discretion, in such form as BEPC Summit and Acquisition Sub Peoples shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election FormForms”) shall be mailed at least thirty (30) days prior to holders the anticipated Closing Date (the “Mailing Date”) to each holder of Company record of Peoples Common Stock of record as of five (5) Business Days prior to the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Mailing Date (“Eligible Company SharesElection Form Record Date”).
(ba) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior ), subject to the allocation procedures of Section 2.2(e), to make a Cash Election, a Stock Election Deadline or no election with respect to elect (an “Election”) to receive each of such holder’s shares of New York Company Class C Peoples Common Stock. Any Peoples Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Eastern time, on the business twenty fifth (25th) day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Summit and Peoples may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe No Election Shares.
(cb) BEPC and Acquisition Sub Summit shall make available one or more an Election Forms as may reasonably be requested from time Form to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Peoples Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company Peoples shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein. Peoples acknowledges that no deadlines for mailing Election Forms contained elsewhere in this Agreement shall be applicable to such shareholders and that the election requests of such shareholders need not be honored.
(dc) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) or Book Entry Shares representing all shares of Peoples Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. Following the Eligible Company Shares subject thereto in accordance with Election Deadline, an Election Form may not be revoked or changed by the procedures set forth thereinperson submitting such Election Form. If In the event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Peoples Common Stock represented by such Election Form shall become No Election Shares and Summit shall cause the Certificates or Book Entry Shares to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the person who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline sole discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Summit nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything .
(d) Within five (5) Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to the contrarywhich case as soon thereafter as practicable, Summit shall cause the Exchange Agent may, to effect the allocation among the holders of Peoples Common Stock of rights to receive the Stock Consideration or the Cash Consideration in the Merger in accordance with the written agreement Election Forms, subject to Section 2.2(e).
(e) Notwithstanding any other provision contained in this Agreement, the total number of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this shares of Peoples Common Stock to be converted into the right to receive the Stock Consideration pursuant to Section 4.02 for the implementation of Elections and the revocation of Elections as 2.1 shall be necessary or desirable that number equal to administer such Electionsthe product (rounded up to the nearest whole number) of (i) 0.50 multiplied by (ii) the number of outstanding shares of Peoples Common Stock (the “Stock Conversion Number”). All other shares of Peoples Common Stock shall be converted into the Cash Consideration.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which Computershare, Inc. shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form serve as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company exchange agent (the “Election FormExchange Agent”) shall be mailed to holders of Company Common Stock of record as for the payment and exchange of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”Merger Consideration.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) Holders of record of Eligible Company Shares DBI Common Stock have the right to submit an Election Form (defined below) specifying the number of shares of DBI Common Stock, if any, held by such Holder that such Holder desires to have converted into the right to receive BFC Common Stock (a “Stock Election”) and the number of shares of DBI Common Stock that the Holder desires to have converted into the right to receive the Per Share Amount in cash (a “Cash Election”).
(c) An election form (“Election Form”), together with a Letter of Transmittal (as of immediately defined in Section 2.09), shall be mailed no less than twenty (20) Business Days prior to the Election Deadline to elect (an as defined below) or on such earlier date as BFC and DBI shall mutually agree (the “ElectionMailing Date”) to receive each Holder of record of DBI Common Stock as of five (5) Business Days prior to the Mailing Date. Holders of record of shares of New York Company Class C DBI Common Stock who hold such shares as nominees, trustees or in other representative capacities (anda “Representative”) may submit multiple Election Forms, upon completion provided that each such Election Form covers all the shares of DBI Common Stock held by each Representative for a particular beneficial owner. Any shares owned by a Holder who has not, as of the Parent ExchangeElection Deadline, Parent LP Units) for all of the Eligible Company Shares held made an election by such holder. The holders of any Eligible Company Shares with respect submission to which the Exchange Agent has not received of an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub Non-Election Shares. BFC shall make available one or more Election Forms as may reasonably be requested in writing from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares DBI Common Stock between the record date for the Company Shareholders Meeting initial mailing of Election Forms and the close of business on the business day Business Day prior to the Election Deadline, and the Company DBI shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any The term “Election Form may be revoked Deadline”, as used below, shall mean 5:00 p.m., Eastern time, on the later of (i) the date of the DBI Meeting and (ii) the date that BFC and DBI shall agree is as near as practicable to five (5) Business Days prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth thereinexpected Closing Date. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline accompanied by one or more Certificates (iior customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all the shares of DBI Common Stock covered by such Election has been made Form. Any Election Form may be revoked or changed by the Person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or change is actually received by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. Shares of DBI Common Stock held by holders who acquired such shares subsequent to the procedures set forth Election Deadline will be designated Non-Election Shares. In addition, if a Holder of DBI Common Stock either (1) does not submit a properly completed Election Form in a timely fashion or (2) revokes its Election Form prior to the Election Deadline and fails to file a new properly completed Election Form before the deadline, such shares shall be designated Non-Election Shares. Subject to the terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have discretion to determine whether any election, revocation or not an Election shall have change has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither BFC nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: Merger Agreement (Bank First Corp)
Election Procedures. (a) An Not less than 10 Business Days prior to the mailing of the Joint Proxy Statement, DigitalGlobe shall appoint a bank or trust company selected by DigitalGlobe and reasonably acceptable to GeoEye (provided that DigitalGlobe’s transfer agent shall be deemed reasonably satisfactory to GeoEye) to act as exchange agent (the “Exchange Agent”) for the payment of the Merger Consideration.
(b) Each Person who, on or prior to the Election Date, is a record holder of shares of GeoEye Common Stock other than Dissenting Shares shall be entitled to specify the number of such holder’s shares of GeoEye Common Stock with respect to which such holder makes a Cash Election, a Stock Election or a Mixed Election.
(c) DigitalGlobe shall prepare and file as an exhibit to the Form S-4 a form of election (the “Form of Election”) in form and other appropriate and customary transmittal materials (which substance reasonably acceptable to GeoEye. The Form of Election shall specify that delivery shall be effected, and risk of loss and title to Eligible any Certificates shall pass, only upon proper delivery of such Eligible the Form of Election and any Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub . GeoEye shall reasonably specify and as shall be reasonably acceptable mail the Form of Election with the Joint Proxy Statement to the Company (the “Election Form”) shall be mailed to all persons who are record holders of Company shares of GeoEye Common Stock of record as of the record date for the Company Shareholders GeoEye Stockholders Meeting. As The Form of Election shall be used herein, by each record holder of shares of Company GeoEye Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit or, in the holder (or case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”documentation) to receive make a Cash Election, a Stock Election or a Mixed Election. In the event that a holder fails to make a Cash Election, a Stock Election or a Mixed Election with respect to any shares of New York Company Class C GeoEye Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held or beneficially owned by such holder. The holders of any Eligible Company Shares , then such holder shall be deemed to have made a Mixed Election with respect to which those shares (each such share, a “Non-Electing GeoEye Share”). GeoEye shall use its commercially reasonable efforts to make the Exchange Agent has not received an effective, properly completed Form of Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not available to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become record holders (or beneficial owners) of Eligible Company Shares shares of GeoEye Common Stock during the period between the record date for the Company Shareholders GeoEye Stockholders Meeting and the close Election Date. Unless the properly completed Form of business on Election provides otherwise, for all purposes of this Section and in accordance with Treasury Regulation Section 1.358-2(a)(2)(ii), (i) a holder will be treated as having surrendered, in exchange for the business day prior total amount of the Merger Consideration received in cash, if any, to be paid to such holder under this Article II (with respect to a holder, the Election Deadline“Cash Portion”), the number of shares of GeoEye Common Stock, GeoEye Preferred Stock, or both, as applicable, of such holder as to which such holder has a right to receive cash pursuant to Sections 2.01(c) and 2.01(d); and (ii) for purposes of clause (i), the Company shall provide Certificates surrendered by a holder in exchange for such holder’s Cash Portion will be deemed to be: (A) first, of those Certificates evidencing shares held by such holder for more than one year before the Exchange Agent Merger within the meaning of Section 1223 of the Code, if any, those Certificates with the highest United States federal income tax basis, in descending order until such Certificates are exhausted or the Cash Portion for such holder is fully paid, then (B) of all information reasonably necessary other of such holder’s Certificates, those Certificates with the highest United States federal income tax basis, in descending order until the Cash Portion for it to perform as specified hereinsuch holder is fully paid.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election holder’s election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form at its designated office, by 5:00 p.m., New York City time, on (i) the Election Deadline date of the GeoEye Stockholders Meeting or (ii) if the Closing Date is more than four Business Days following the GeoEye Stockholders Meeting, 2 Business Days preceding the Closing Date (the “Election Date”), a Form of Election properly and fully completed and signed and accompanied by (A) in the case of shares of GeoEye Common Stock represented by a Certificate, Certificates representing the shares of GeoEye Common Stock to which such Form of Election has been made at relates, duly endorsed in blank or prior otherwise in form acceptable for transfer on the books of GeoEye (or by an appropriate guarantee of delivery of such Certificates as set forth in such Form of Election from a firm that is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act); provided that such Certificates are in fact delivered to the Election Deadline pursuant to Exchange Agent by the time set forth in such guarantee of delivery) or (ii) in the case of shares of GeoEye Common Stock held in book-entry form, any additional documents required by the procedures set forth in the Election FormForm of Election. After an a Cash Election, a Stock Election or a Mixed Election is validly made with respect to any Eligible Company Sharesshares of GeoEye Common Stock, no further registration of transfers of such Eligible Company Shares shares shall be made on the stock transfer books of the Company GeoEye, unless and until such Cash Election, Stock Election or Mixed Election is properly revoked in accordance with revoked.
(e) DigitalGlobe and GeoEye shall publicly announce the procedures set forth in anticipated Election Date at least 7 Business Days prior to the anticipated Closing Date. If the Closing Date is delayed to a subsequent date, the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election Date shall be deemed automatically revoked in similarly delayed to a subsequent date, and DigitalGlobe and GeoEye shall promptly announce any such delay and, when determined, the event of any transfer of such beneficial ownershiprescheduled Election Date.
(f) Any Cash Election, Stock Election or Mixed Election may be revoked with respect to all or a portion of the shares of GeoEye Common Stock subject thereto by the holder who submitted the applicable Form of Election by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date. In addition, all Cash Elections, Stock Elections and Mixed Elections shall automatically be revoked if this Agreement is terminated in accordance with Article VIII. If a Cash Election, a Stock Election or a Mixed Election is revoked, the shares as to which such election previously applied shall be treated as Non-Electing GeoEye Shares unless a contrary election is submitted by the holder within the period during which elections are permitted to be made pursuant to Section 2.02(d). Certificates will not be returned to holders, and the accounts of holders of shares GeoEye Common Stock held in book-entry form will not be credited at the Depository Trust Company, unless the holder so requests.
(g) The reasonable good faith determination of the Exchange Agent (or the joint determination of DigitalGlobe and GeoEye, in the event that the Exchange Agent declines to make any such determination) shall be conclusive and binding as to whether or not an Election Cash Elections, Stock Elections or Mixed Elections shall have been properly made or revoked pursuant to the Election Form, this Section 2.02 and as to when Cash Elections, Stock Elections, Mixed Elections and revocations of Elections were received by the Exchange Agent. The Exchange Agent (or DigitalGlobe and as to whether to disregard immaterial defects GeoEye jointly, in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the event that the Exchange Agent declines to make the following computation) shall also make all computations contemplated by Section 2.01(c), and absent manifest error this computation shall be under any obligation to notify any person of any defect in a completed Election Formconclusive and binding. Notwithstanding anything in this Section 4.02 to the contrary, the The Exchange Agent may, with the written agreement of BEPC and Acquisition SubDigitalGlobe, make any rules or procedures as are consistent with this Section 4.02 2.02 for the implementation of the Cash Elections, Stock Elections and the revocation of Mixed Elections provided for in this Agreement as shall be necessary or desirable to administer such effect these Cash Elections, Stock Elections and Mixed Elections.
Appears in 1 contract
Sources: Merger Agreement (GeoEye, Inc.)
Election Procedures. (a) An Not less than 10 Business Days prior to the mailing of the Joint Proxy Statement, DigitalGlobe shall appoint a bank or trust company selected by DigitalGlobe and reasonably acceptable to GeoEye (provided that DigitalGlobe's transfer agent shall be deemed reasonably satisfactory to GeoEye) to act as exchange agent (the “Exchange Agent”) for the payment of the Merger Consideration.
(b) Each Person who, on or prior to the Election Date, is a record holder of shares of GeoEye Common Stock other than Dissenting Shares shall be entitled to specify the number of such holder's shares of GeoEye Common Stock with respect to which such holder makes a Cash Election, a Stock Election or a Mixed Election.
(c) DigitalGlobe shall prepare and file as an exhibit to the Form S-4 a form of election (the “Form of Election”) in form and other appropriate and customary transmittal materials (which substance reasonably acceptable to GeoEye. The Form of Election shall specify that delivery shall be effected, and risk of loss and title to Eligible any Certificates shall pass, only upon proper delivery of such Eligible the Form of Election and any Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub . GeoEye shall reasonably specify and as shall be reasonably acceptable mail the Form of Election with the Joint Proxy Statement to the Company (the “Election Form”) shall be mailed to all persons who are record holders of Company shares of GeoEye Common Stock of record as of the record date for the Company Shareholders GeoEye Stockholders Meeting. As The Form of Election shall be used herein, by each record holder of shares of Company GeoEye Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit or, in the holder (or case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”documentation) to receive make a Cash Election, a Stock Election or a Mixed Election. In the event that a holder fails to make a Cash Election, a Stock Election or a Mixed Election with respect to any shares of New York Company Class C GeoEye Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held or beneficially owned by such holder. The holders of any Eligible Company Shares , then such holder shall be deemed to have made a Mixed Election with respect to which those shares (each such share, a “Non-Electing GeoEye Share”). GeoEye shall use its commercially reasonable efforts to make the Exchange Agent has not received an effective, properly completed Form of Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not available to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become record holders (or beneficial owners) of Eligible Company Shares shares of GeoEye Common Stock during the period between the record date for the Company Shareholders GeoEye Stockholders Meeting and the close Election Date. Unless the properly completed Form of business on Election provides otherwise, for all purposes of this Section and in accordance with Treasury Regulation Section 1.358-2(a)(2)(ii), (i) a holder will be treated as having surrendered, in exchange for the business day prior total amount of the Merger Consideration received in cash, if any, to be paid to such holder under this Article II (with respect to a holder, the Election Deadline“Cash Portion”), the number of shares of GeoEye Common Stock, GeoEye Preferred Stock, or both, as applicable, of such holder as to which such holder has a right to receive cash pursuant to Sections 2.01(c) and 2.01(d); and (ii) for purposes of clause (i), the Company shall provide Certificates surrendered by a holder in exchange for such holder's Cash Portion will be deemed to be: (A) first, of those Certificates evidencing shares held by such holder for more than one year before the Exchange Agent Merger within the meaning of Section 1223 of the Code, if any, those Certificates with the highest United States federal income tax basis, in descending order until such Certificates are exhausted or the Cash Portion for such holder is fully paid, then (B) of all information reasonably necessary other of such holder's Certificates, those Certificates with the highest United States federal income tax basis, in descending order until the Cash Portion for it to perform as specified hereinsuch holder is fully paid.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election holder’s election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form at its designated office, by 5:00 p.m., New York City time, on (i) the Election Deadline date of the GeoEye Stockholders Meeting or (ii) if the Closing Date is more than four Business Days following the GeoEye Stockholders Meeting, 2 Business Days preceding the Closing Date (the “Election Date”), a Form of Election properly and fully completed and signed and accompanied by (A) in the case of shares of GeoEye Common Stock represented by a Certificate, Certificates representing the shares of GeoEye Common Stock to which such Form of Election has been made at relates, duly endorsed in blank or prior otherwise in form acceptable for transfer on the books of GeoEye (or by an appropriate guarantee of delivery of such Certificates as set forth in such Form of Election from a firm that is an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the Exchange Act); provided that such Certificates are in fact delivered to the Election Deadline pursuant to Exchange Agent by the time set forth in such guarantee of delivery) or (ii) in the case of shares of GeoEye Common Stock held in book-entry form, any additional documents required by the procedures set forth in the Election FormForm of Election. After an a Cash Election, a Stock Election or a Mixed Election is validly made with respect to any Eligible Company Sharesshares of GeoEye Common Stock, no further registration of transfers of such Eligible Company Shares shares shall be made on the stock transfer books of the Company GeoEye, unless and until such Cash Election, Stock Election or Mixed Election is properly revoked in accordance with revoked.
(e) DigitalGlobe and GeoEye shall publicly announce the procedures set forth in anticipated Election Date at least 7 Business Days prior to the anticipated Closing Date. If the Closing Date is delayed to a subsequent date, the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election Date shall be deemed automatically revoked in similarly delayed to a subsequent date, and DigitalGlobe and GeoEye shall promptly announce any such delay and, when determined, the event of any transfer of such beneficial ownershiprescheduled Election Date.
(f) Any Cash Election, Stock Election or Mixed Election may be revoked with respect to all or a portion of the shares of GeoEye Common Stock subject thereto by the holder who submitted the applicable Form of Election by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date. In addition, all Cash Elections, Stock Elections and Mixed Elections shall automatically be revoked if this Agreement is terminated in accordance with Article VIII. If a Cash Election, a Stock Election or a Mixed Election is revoked, the shares as to which such election previously applied shall be treated as Non-Electing GeoEye Shares unless a contrary election is submitted by the holder within the period during which elections are permitted to be made pursuant to Section 2.02(d). Certificates will not be returned to holders, and the accounts of holders of shares GeoEye Common Stock held in book-entry form will not be credited at the Depository Trust Company, unless the holder so requests.
(g) The reasonable good faith determination of the Exchange Agent (or the joint determination of DigitalGlobe and GeoEye, in the event that the Exchange Agent declines to make any such determination) shall be conclusive and binding as to whether or not an Election Cash Elections, Stock Elections or Mixed Elections shall have been properly made or revoked pursuant to the Election Form, this Section 2.02 and as to when Cash Elections, Stock Elections, Mixed Elections and revocations of Elections were received by the Exchange Agent. The Exchange Agent (or DigitalGlobe and as to whether to disregard immaterial defects GeoEye jointly, in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the event that the Exchange Agent declines to make the following computation) shall also make all computations contemplated by Section 2.01(c), and absent manifest error this computation shall be under any obligation to notify any person of any defect in a completed Election Formconclusive and binding. Notwithstanding anything in this Section 4.02 to the contrary, the The Exchange Agent may, with the written agreement of BEPC and Acquisition SubDigitalGlobe, make any rules or procedures as are consistent with this Section 4.02 2.02 for the implementation of the Cash Elections, Stock Elections and the revocation of Mixed Elections provided for in this Agreement as shall be necessary or desirable to administer such effect these Cash Elections, Stock Elections and Mixed Elections.
Appears in 1 contract
Sources: Merger Agreement (Digitalglobe Inc)
Election Procedures. The Parties acknowledge that for United States income tax purposes it is intended that the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Code, and this Agreement is intended to be and is adopted as, a plan of reorganization within the meaning of Section 368 of the Code. Consistent with that intent, notwithstanding any provision of this Agreement to the contrary, the aggregate Merger Consideration payable to all holders of Alliance Common Stock shall include such number of shares of NEWCO Common Stock as is necessary Back to Contents in order that the aggregate number of shares of Alliance Common Stock exchanged through the Merger for shares of NEWCO Common Stock is at least 75% of the aggregate of (ai) the total number of shares of Alliance Common Stock issued and outstanding (including those issued and outstanding shares of Alliance Common Stock held in the Alliance Stock Option Income Deferral Plan) and (ii) the total number of shares of Alliance Common Stock subject to Options immediately prior to the Effective Time (the “Minimum Share Requirement”). Holders of Options may elect to receive shares of NEWCO Common Stock or, by virtue of having failed to elect to receive shares of NEWCO Common Stock, the cash Option Price as contemplated in Section 3.1.4, and holders of Alliance Common Stock (including issued and outstanding shares of Alliance Common Stock held in the Alliance Stock Option Income Deferral Plan) may elect to receive shares of NEWCO Common Stock or, subject to the Minimum Share Requirement, the Cash Election Price in exchange for their shares of Alliance Common Stock or Options, as the case may be, in accordance with the following procedures.
3.2.1 An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall will be mailed sent by NEWCO no later than fifteen (15) Business Days and no earlier than thirty (30) Business Days prior to holders the expected Effective Time (provided that it need not be sent until the approvals from the Bank Regulators as set forth in Section 8.4 have been obtained) to each holder of Company record of Alliance Common Stock and each holder of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the an Option permitting such holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect to receive either (an i) NEWCO Common Stock with respect to each share of such holder’s Alliance Common Stock or Option, as the case may be, as provided herein (the “ElectionAlliance Stock Election Shares”) or (ii) in the case of holders of Alliance Common Stock, cash with respect to receive each share of such holder’s Alliance Common Stock, as provided herein (the “Alliance Cash Election Shares”). Any shares of New York Company Class C Alliance Common Stock (and, upon completion including those issued and outstanding shares of Alliance Common Stock held in the Parent Exchange, Parent LP UnitsAlliance Stock Option Income Deferral Plan) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the holder thereof shall not, as of the Election Deadline, have made such an election by submission to the Exchange Agent has not received on an effective, properly completed Election Form on or before shall be deemed to be Alliance Stock Election Shares and shall be converted into NEWCO Common Stock in accordance with Section 3.1.2. Any Options with respect to which the holder thereof shall not, as of the Election Deadline, have made such election by submission to the Exchange Agent of an effective, properly completed Election Form shall be entitled to the Option Price as set forth in Section 3.1.4 hereof multiplied by the number of shares of Alliance Common Stock subject to such Option. Any Dissenting Shares shall be deemed to be Alliance Cash Election Shares, and with respect to such shares the holders thereof shall in no event receive consideration comprised of NEWCO Common Stock.
3.2.2 The term “Election Deadline”, as used below, shall mean 5:00 p.m., New York Eastern time, on the business day immediately preceding fifteenth (15th) Business Day following but not including the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) mailing of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election DeadlineForm or such other date as Alliance and NEWCO shall mutually agree upon, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to provided in any event, the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed at or before the Effective Time. Any election to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election receive NEWCO Common Stock or cash shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. Any Election Form may be revoked or (ii) changed by the person submitting such Election has been made Form to the Exchange Agent by written notice to the Exchange Agent only if such notice is actually received, including by facsimile, by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. The certificate or certificates representing Alliance Common Stock relating Back to Contents to any revoked Election Form shall be promptly returned without charge to the procedures set forth person submitting the Election Form to the Exchange Agent. The Exchange Agent shall have discretion to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made. Within five (5) Business Days after the Election Deadline, the Exchange Agent shall calculate the allocation, if any, among holders of Alliance Common Stock of rights to receive the Cash Election Price in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked Merger in accordance with the procedures set forth Election Forms as follows:
(i) If the number of Alliance Stock Election Shares is less than the Minimum Share Requirement, then the Alliance Cash Election Shares will be converted into the right to receive NEWCO Common Stock and cash in the Election Form. In following manner:
(A) a proration factor (the event any Election is made by a beneficial owner of Eligible Company Shares, such Election “Cash Proration Factor”) shall be deemed automatically revoked determined by dividing (x) the number by which the sum of (i) the number of Cash Election Shares and (ii) the number of shares of Alliance Common Stock subject to Options immediately prior to the Effective Time receiving the cash Option Price, exceeds 25% of the sum of (iii) the total number of shares of Alliance Common Stock issued and outstanding (including without limitation the shares of Alliance Common Stock held in the event Alliance Stock Option Income Deferral Plan) and (iv) the total number of any transfer shares of such beneficial ownership.Alliance Stock underlying Options immediately prior to the Effective Time, by (y) the sum of (v) number of Cash Election Shares (excluding Dissenting Shares therefrom) plus (vi) the number of shares of Alliance Common Stock subject to Options immediately prior to the Effective Time receiving the cash Option Price;
(fB) The reasonable good faith determination the number of Alliance Cash Election Shares (other than Dissenting Shares) held by each holder of shares of Alliance Common Stock that will be converted into the Exchange Agent shall be conclusive and binding as right to whether or not an Election shall have been properly made or revoked receive cash pursuant to the terms of Section 3.1.3 shall be reduced by that whole number of Cash Election Form, as to when Elections and revocations Shares held by such holder of Elections were received shares of Alliance Common Stock determined by multiplying the Cash Proration Factor by the Exchange Agent number of Alliance Cash Election Shares held by such holder and as rounding up to whether the nearest whole share; and
(C) all Alliance Cash Election Shares (other than (i) those shares converted into the right to disregard immaterial defects receive cash in a completed Election Form. None accordance with the preceding subparagraph (B), (ii) Options the holders of Parent, BEPC, Acquisition Sub or which failed to make the Exchange Agent election contemplated in Section 3.1.4 hereof and (iii) Dissenting Shares) shall be under any obligation converted into the right to notify any person of any defect receive NEWCO Common Stock in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, accordance with the written agreement terms of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections3.1.2.
Appears in 1 contract
Sources: Merger Agreement (Alliance Bancorp of New England Inc)
Election Procedures. Each holder of record of shares of Company Common Stock (“Holder”) shall have the right, subject to the limitations set forth in this Article II, to submit an election in accordance with the following procedures:
(a) An election Each Holder may specify in a request made in accordance with the provisions of this Section 2.12 (herein called an “Election”) (i) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (ii) the number of shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election.
(b) Parent shall prepare a form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election FormForm of Election”) which shall be mailed to record holders of Company Common Stock of record so as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior those holders to the Election Deadline exercise their right to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(ec) Parent shall make the Form of Election initially available not less than twenty (20) Business Days prior to the anticipated Election Deadline and shall use commercially reasonable efforts to make available as promptly as possible a Form of Election to any shareholder of Company who requests such Form of Election following the initial mailing of the Forms of Election and prior to the Election Deadline.
(d) Any Election shall have been made properly made only if the person authorized to receive Elections and to act as exchange agent under this Agreement, which person shall be a bank or trust company selected by Parent and reasonably acceptable to Company (ithe “Exchange Agent”), pursuant to an agreement (the “Exchange Agent Agreement”) entered into prior to the mailing of the Form of Election to Company shareholders, shall have received, by the Election Deadline, a Form of Election properly completed and signed and accompanied by Certificates to which such Form of Election relates or by an appropriate customary guarantee of delivery of such certificates, as set forth in such Form of Election, from a member of any registered national securities exchange or a commercial bank or trust company in the United States; provided that such Certificates are in fact delivered to the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) time required in such Election has been made at or prior guarantee of delivery. Failure to deliver shares of Company Common Stock covered by such a guarantee of delivery within the Election Deadline pursuant to the procedures time set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of on such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election guarantee shall be deemed automatically revoked to invalidate any otherwise properly made Election, unless otherwise determined by Parent, in its sole discretion. As used herein, unless otherwise agreed in advance by the parties, “Election Deadline” means 5:00 p.m. local time (in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination city in which the principal office of the Exchange Agent is located) on the date that Parent and Company shall be conclusive and binding agree is as near as practicable to whether or not an Election shall have been properly made or revoked pursuant five (5) Business Days prior to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsexpected Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Southern Community Financial Corp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effectedmaterials, including a Letter of Transmittal and risk of loss and title to Eligible Certificates shall passOption Election Agreement, only upon proper delivery of such Eligible Certificates to the Exchange Agent) as applicable, in such form as BEPC and Acquisition Sub the Company shall reasonably specify and as shall be reasonably acceptable to the Company Parent (the “Election Form”) shall be mailed to holders of Company Common Stock of record at such time as of the record date for the Company Shareholders Meeting. As used herein, shares and Parent may agree (the “Mailing Date”) to each holder of Company Common Stock issued Outstanding Shares and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company each holder of Vested Option Shares”.
(b) Each Election Form shall permit the holder, other than any holder of Dissenting Shares, to specify (or i) the beneficial owner through appropriate and customary documentation and instructions) number of record shares of Eligible Company such holder’s Outstanding Shares as of immediately prior and/or Vested Option Shares with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Equity Consideration (“Equity Election Shares”), (ii) the number of shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder’s Outstanding Shares and/or Vested Option Shares with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Outstanding Shares and/or Vested Option Shares (“No Election Shares”). The holders of any Eligible Company Any Outstanding Shares or Vested Option Shares with respect to which the Exchange Agent Secretary of the Company has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Houston, Texas time, on the business day immediately preceding deadline specified in the date of the Company Shareholders Meeting Election Form (the “Election Deadline”) (other than any Outstanding Shares that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe No Election Shares.
(c) BEPC and Acquisition Sub Any such election shall make available have been properly made only if the Secretary of the Company shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by, as applicable, (i) one or more Election Forms as may reasonably be requested from time to time by all persons who become holders Certificates (or beneficial ownersother evidence thereof in accordance with Section 2.12(f)) representing all Outstanding Shares covered by such Election Form, together with duly executed Letter of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Transmittal; or (ii) a duly executed Option Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Agreement. Any Election Form may be revoked or changed by the Person submitting such Election Form prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Outstanding Shares and/or Vested Option Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent become No Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior Shares. Subject to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration terms of transfers this Agreement and of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as the Secretary of the Company shall have reasonable discretion to when Elections determine whether any election, revocation or change has been properly or timely made and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Secretary of the Company regarding such matters shall be binding and conclusive. None of Parent, BEPCMerger Subsidiary, Acquisition Sub or the Exchange Agent Company nor the Secretary of the Company shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(d) Within three (3) Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to which case as soon after the contraryEffective Time as practicable (and in no event more than three (3) Business Days after the Effective Time), the Exchange Agent may, Company shall effect the allocation among the holders of Outstanding Shares and Vested Option Shares of rights to receive the merger consideration in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 1 contract
Election Procedures. (a) An election form Tower and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk FNB will include a copy of loss and title to Eligible Certificates shall pass, only upon proper delivery an Election Form with each copy of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be Prospectus/Proxy Statement mailed to holders of Company FNB Common Stock of record as of in connection with the record date for the Company FNB Shareholders Meeting. As used herein, :
(i) To elect to receive the Common Stock Consideration with respect to all or a portion of their shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C FNB Common Stock (and, upon completion of the Parent Exchange, Parent LP Units“Common Stock Election Shares”); or
(ii) for all of To elect to receive the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Cash Consideration with respect to which the Exchange Agent has not received an effective, properly completed Election Form on all or before 5:00 p.m., New York time, on the business day immediately preceding the date a portion of the Company Shareholders Meeting their shares of FNB Common Stock (the “Cash Election DeadlineShares”) ). Tower and FNB shall be deemed not each use its reasonable efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make the Election Form available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares FNB Common Stock during the period between the record date for the Company FNB Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any holder’s Election shall have been properly made only if (i) the Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by the FNB Certificates to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such FNB Certificates as set forth in such Election Form from a firm which is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act) provided that such FNB Certificates are in fact delivered to the Exchange Agent by the time set forth in such guarantee of delivery). If a holder of FNB Common Stock: (i) does not submit a properly completed Election Form by before the Election Deadline or Deadline; (ii) such revokes an Election has been made at or Form prior to the Election Deadline and does not resubmit a properly completed Election Form prior to the Election Deadline; or (iii) fails to perfect his, her or its dissenters’ rights pursuant to Section 2.05(b) of this Agreement, the procedures set forth in shares of FNB Common Stock held by such holder shall be designated “No-Election Shares.” Nominee record holders who hold FNB Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Common Stock Election FormShares, Cash Election Shares and No-Election Shares. After an For purposes of this Section 2.02, any Dissenting FNB Shares shall be deemed to be Cash Election is validly made Shares and, with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryshares, the Exchange Agent may, with the written agreement holders thereof shall in no event be classified as holders of BEPC and Acquisition Sub, make any rules or procedures Reallocated Common Stock Shares as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsdefined herein.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates certificates evidencing shares of Company Common Stock (the “Certificates”) shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC an unaffiliated bank or trust company designated by Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable satisfactory to the Company (the “Exchange Agent”)) in such form as the Company and Parent shall mutually agree (the “Election Form”) ), shall be mailed no later than 15 days prior to holders the anticipated Effective Time or on such earlier date as Parent and the Company may mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock as of a date which is no more than ten days prior to the Mailing Date (the “Election Form Record Date”). Each Election Form shall permit each holder of record of Company Common Stock as of the Election Form Record Date (or in the case of nominee record date holders, the beneficial owner through proper instructions and documentation) to elect to receive the Stock/Cash Consideration for all or some of such holder’s shares (a “Stock/Cash Election”) and shall provide that in the Company Shareholders Meeting. As used herein, absence of such an election by a holder all of such holder’s shares of Company Common Stock issued and outstanding and not shall be converted into the Stock Consideration. Holders of record of shares of Company Common Stock who hold such shares as nominees, trustees or in other representative capacities (a “Representative”) may submit multiple Election Forms, provided that such Representative certifies that each such Election Form covers all the shares of Company Common Stock held by any Parent Stockholder shall be referred to as “Eligible Company Shares”that Representative for a particular beneficial owner.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York City time, on the business 20th calendar day immediately preceding following but not including the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting may mutually agree) (the “Election Deadline”) shall be deemed not to have made an Election).
(c) BEPC and Acquisition Sub An Election Form shall make available be deemed properly completed only if accompanied by one or more Election Forms as may reasonably be requested from time to time by all persons who become holders Certificates (or beneficial ownerscustomary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to Common Stock covered by such Election Form, together with duly executed transmittal materials included with the Election Deadline, and the Form. If a holder of Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
Common Stock either (di) Any does not submit a properly completed Election Form may be revoked prior to in a timely fashion or (ii) revokes the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an holder’s Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares represented Common Stock held by such Election Form holder shall be deemed to have made no Election, unless a subsequent Election is submitted by converted into the holder of such Eligible Company Shares Stock Consideration in accordance with the procedures set forth terms of this Agreement. Parent shall cause the Certificates described in clause (ii) of the immediately preceding sentence to be promptly returned without charge to the Person submitting the Election Form prior upon written request to that effect from the Person who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Parent nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “an "Election Form”") shall be mailed with the Proxy Statement to holders each holder of Company record of shares of RMB Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares meeting of Company holders of RMB Common Stock issued called for the purpose of considering and outstanding acting upon this Agreement and not held by any Parent Stockholder shall be the Contemplated Transactions. The date the Proxy Statement is mailed to shareholders of RMB is referred to as “Eligible Company Shares”the "Mailing Date."
(b) Each The Election Form shall permit entitle the holder of shares of RMB Common Stock (or the beneficial owner through appropriate and customary documentation and instructions) to elect to receive Stock Consideration in a greater percentage than the Base Conversion Ratio, up to and including entirely Stock Consideration for such holder's shares (a "Stock Election"). Holders of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C RMB Common Stock who hold such shares as nominees, trustees or in other representative capacities (anda "Share Representative") may submit multiple Election Forms, upon completion provided that such Share Representative certifies that each such Election Form covers all the shares of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares RMB Common Stock held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Electionthat Share Representative for a particular beneficial owner.
(c) BEPC To be effective, a properly completed Election Form must be received by Dubuque Bank and Acquisition Sub shall make available one Trust Company, an Iowa chartered, commercial bank with its main office located in Dubuque, Iowa (the "Exchange Agent"), on or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business before 5:00 p.m. on the business day prior tenth (10th) Business Day following the date upon which the vote of holders of RMB Common Stock is held to approve this Agreement (the "Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein"). If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior Deadline. Subject to the Election Deadline pursuant to the procedures set forth in terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have reasonable discretion to determine whether or not an Election shall have any election has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form. None , and any good faith decisions of Parent, BEPC, Acquisition Sub or the Exchange Agent regarding such matters shall be under any obligation to notify any person binding and conclusive. If a valid and timely Stock Election is not received from a holder of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryRMB Common Stock, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 such RMB Common Stock shall be exchanged for the implementation of Elections and Merger Consideration at the revocation of Elections as shall be necessary or desirable to administer such ElectionsBase Conversion Ratio.
Appears in 1 contract
Election Procedures. a. Holders of record of CB Common Stock have the right to submit an Election Form (adefined below) specifying the number of shares of CB Common Stock, if any, as to which such holder desires to select Option A and the number of shares of CB Common Stock, if any, as to which such holder desires to select Option B.
b. An election form (“Election Form”), together with a Letter of Transmittal and other appropriate and customary transmittal materials (which shall specify that delivery Offering Memorandum shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates mailed no less than twenty (20) Business Days prior to the Exchange Agent) election deadline specified in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company Election Form (the “Election FormDeadline”) or on such earlier date the parties shall be mailed mutually agree (the “Mailing Date”) to holders each holder of Company record of CB Common Stock as of five (5) Business Days prior to the Mailing Date. Holders of record of shares of CB Common Stock who hold such shares as nominees, trustees or in other representative capacities may submit multiple Election Forms, provided that each such Election Form covers all the shares of CB Common Stock held by each representative for a particular beneficial owner. Any shares owned by a holder who has not, as of the record date for the Company Shareholders Meeting. As used hereinElection Deadline, shares of Company Common Stock issued and outstanding and not held made an election by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior submission to the Election Deadline to elect (an “Election”) to receive shares Paying Agent of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC “Non-Election Shares” and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadlineselected Option B (all cash).
(e) Any Election c. An election shall have been properly made only if (i) the Exchange Paying Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. Any Election Form may be revoked or (ii) changed by the Person submitting such Election has been made Form to the Paying Agent by written notice to the Paying Agent only if such notice of revocation or change is actually received by the Paying Agent at or prior to the Election Deadline pursuant Deadline. Shares of CB Common Stock held by holders who acquired such shares subsequent to the procedures set forth Election Deadline will be designated Non-Election Shares. In addition, if a Holder of CB Common Stock either (1) does not submit a properly completed Election Form in a timely fashion or (2) revokes its Election Form prior to the Election Form. After an Deadline and fails to file a new properly completed Election is validly made with respect to any Eligible Company SharesForm before the deadline, no further registration of transfers of such Eligible Company Shares shares shall be made on designated Non-Election Shares. Subject to the transfer books terms of the Company unless this Agreement and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as the Paying Agent shall have discretion to when Elections determine whether any election, revocation or change has been properly or timely made and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Paying Agent regarding such matters shall be binding and conclusive. None of ParentNeither CB, BEPCClear, Acquisition Sub or New Pubco nor the Exchange Paying Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: Merger Agreement (Quantum FinTech Acquisition Corp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates or Book Entry-Shares shall pass, only upon proper delivery of such Eligible Certificates or an “agent’s message” with respect to such Book-Entry Shares, to the Exchange Agent) in such form as BEPC and Acquisition Sub Purchaser shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed no later than two (2) Business Days after the Closing Date or on such other date as Purchaser and the Company shall mutually agree (the “Mailing Date”) to holders each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Closing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) the number of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York such holder’s Company Class C Common Stock with respect to which such holder makes a Stock/Cash Election and (and, upon completion ii) the number of the Parent Exchange, Parent LP Units) for all shares of the Eligible Company Shares held by such holder’s Company Common Stock with respect to which such holder makes a Cash Election. The holders Any shares of any Eligible Company Shares Common Stock with respect to which the Exchange Agent (as defined below) has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business twentieth (20th) day immediately preceding following the Mailing Date (or such other time and date of as Purchaser and the Company Shareholders Meeting shall agree) (the “Election Deadline”) shall be deemed not to be “No Election Shares,” and the holders of such No Election Shares shall be deemed to have made an Electiona Stock/Cash Election with respect to such No Election Shares.
(c) BEPC and Acquisition Sub Except as provided in the last sentence of Section 1.9(b), any election shall make available one or more have been properly made only if the Exchange Agent shall have actually received a properly completed Election Forms as may reasonably be requested from time to time Form by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked or changed by the Person submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall be deemed become No Election Shares, except to have made no Election, unless the extent a subsequent Election election is submitted by the holder properly made with respect to any or all of such Eligible shares of Company Shares in accordance with the procedures set forth in the Election Form Common Stock prior to the Election Deadline.
(e) Any . Subject to the terms of this Agreement and of the Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good-faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPCPurchaser, Acquisition Sub Merger Sub, the Company or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, .
(d) Purchaser shall cause the Exchange Agent may, to promptly coordinate with Independence Trust Company (the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 “Trustee”) for the implementation further distribution of Elections Election Forms to participants and beneficiaries under the Company’s Employee Stock Ownership Plan (as amended and restated), effective January 1, 2002 (the “ESOP”), and the revocation mailing and receipt of Elections as shall be necessary or desirable Election Forms with respect to administer such Electionsshares of Company Common Stock held in the name of Trustee under the ESOP for the benefit of participants thereunder.
Appears in 1 contract
Sources: Merger Agreement (Alexanders J Corp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub Parent shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed together with the Proxy Statement or at such other time as the Company and Parent may agree (the “Mailing Date”) to holders each holder of record of Company Common Stock of record as of the close of business on the record date for notice of the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Special Meeting (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record shares of Eligible such holder’s Company Shares as of immediately prior Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (ii) the number of shares of New York such holder’s Company Class C Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Shares”), or (iii) that such holder makes no election with respect to such holder’s Company Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible “No Election Shares”). Any Company Shares held by such holder. The holders of any Eligible Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Houston time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as the Company Shareholders Meeting and Parent shall agree) (the “Election Deadline”) (other than any shares of Company Common Stock that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe “No Election Shares.”
(c) BEPC and Acquisition Sub Parent shall make available one or more Election Forms as may reasonably be requested from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of Company Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the Person submitting such Election Form prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall become No Election Shares and Parent shall cause the Certificates representing Company Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form, except to the Election Deadline.
extent (eif any) Any Election shall have been a subsequent election is properly made only if (i) with respect to any or all of the applicable shares of Company Common Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub Purchaser or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within ten Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to which case as soon after the contraryEffective Time as practicable (and in no event more than ten Business Days after the Effective Time), Parent shall cause the Exchange Agent may, to effect the allocation among the holders of Company Common Stock of rights to receive Parent Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 1 contract
Election Procedures. (aA) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of WBC Common Stock shall pass, only upon proper delivery of such Eligible Certificates Certificates, or customary affidavits and indemnification regarding the loss or destruction of such certificates, to the Exchange Agent) in such form as BEPC WBC and Acquisition Sub Frontier shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall be mailed with the Proxy Statement on the date of mailing of the Proxy Statement or on such other date as Frontier and WBC shall mutually agree (the “Mailing Date”) to holders each holder of Company record of WBC Common Stock of record as of the record date for close of business on the Company Shareholders Meetingfifth business day prior to the Mailing Date (the “Election Form Record Date”). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.AGREEMENT AND PLAN OF MERGER 9
(bB) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to (x) elect (an “Election”) to receive shares (1) the Per Share Stock Consideration in respect of New York Company Class C all of such holder’s WBC Common Stock (and, upon completion “Stock Election Shares”); (2) the Per Share Cash Consideration in respect of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder’s WBC Common Stock (“Cash Election Shares”); or (3) the Per Share Stock Consideration in respect of that portion to such holder’s shares of WBC Common Stock equal to the Stock Percentage (as defined below), rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder’s shares of WBC Common Stock equal to the Cash Percentage (as defined below), rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”); or (y) to make no election with respect to such holder’s WBC Common Stock (“No Election Shares”). The holders of any Eligible Company Shares Any WBC Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York timePacific Time, on the business day immediately preceding date prior to the Determination Date (or such other time and date of the Company Shareholders Meeting as Frontier and WBC may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe “No Election Shares.
” The term “Cash Percentage” shall mean the quotient, rounded to the nearest thousandth, obtained by dividing (cx) BEPC and Acquisition Sub shall make available one or more Election Forms the quotient obtained by dividing the Total Cash Amount by the Per Share Consideration, by (y) the total number of shares of WBC Common Stock outstanding as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior Determination Date. “Stock Percentage” shall mean the amount equal to one (1) minus the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified hereinCash Percentage.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC a bank or trust company designated by Buyer and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable satisfactory to the Company (the “Exchange Agent”)) in such form as the Company and Buyer shall mutually agree (the “Election Form”) ), shall be mailed no less than 20 Business Days prior to holders the anticipated Closing Date or such other date as the Company and Buyer shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock as of five Business Days prior to the Mailing Date. Each Election Form shall permit the holder of record as of Company Common Stock (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to (i) elect to receive the Cash Consideration for all or a portion of such holder’s shares (a “Cash Election”), (ii) elect to receive the Stock Consideration for all or a portion of such holder’s shares (a “Stock Election”), or (iii) make no election with respect to the receipt of the record date for Cash Consideration or the Company Shareholders Meeting. As used hereinStock Consideration (a “Non-Election”); provided, however, that, notwithstanding any other provision of this Agreement to the contrary, but subject to Section 2.5, eighty-five percent (85%) of the shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder immediately prior to the Effective Time (the “Stock Conversion Number”) shall be converted into the Stock Consideration and the remaining shares of Company Common Stock shall be converted into the Cash Consideration. A record holder acting in different capacities or acting on behalf of other Persons (as defined in Section 9.3) in any way will be entitled to submit an Election Form for each capacity in which such record holder so acts with respect to each Person for which it so acts. Shares of Company Common Stock as to which a Cash Election has been made are referred to herein as “Eligible Cash Election Shares.” Shares of Company Common Stock as to which a Stock Election has been made are referred to herein as “Stock Election Shares.” Shares of Company Common Stock as to which no election has been made (or as to which an Election Form is not properly completed and returned in a timely fashion) are referred to herein as “Non-Election Shares.” The aggregate number of shares of Company Common Stock with respect to which a Stock Election has been made is referred to herein as the “Stock Election Number.”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an To be effective, a properly completed Election Form shall be received by the Exchange Agent on or before 5:00 p.m., New York timeEastern Time, on the business 25th day immediately preceding following the Mailing Date (or such other time and date of as mutually agreed upon by the Company Shareholders Meeting parties (which date shall be publicly announced by Buyer as soon as practicable prior to such date)) (the “Election Deadline”) shall be deemed not ), accompanied by the Certificates as to have which such Election Form is being made or by an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms appropriate guarantee of delivery of such Certificates, as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to set forth in the Election DeadlineForm, and from a member of any registered national securities exchange or a commercial bank or trust company in the Company shall provide United States (provided, however, that such Certificates are in fact delivered to the Exchange Agent all information reasonably necessary for it by the time required in such guarantee of delivery; failure to perform as specified herein.
deliver shares of Company Common Stock covered by such guarantee of delivery within the time set forth on such guarantee shall be deemed to invalidate any otherwise properly made election, unless otherwise determined by Buyer, in its sole discretion). If a holder of Company Common Stock either (di) Any does not submit a properly completed Election Form may be revoked in a timely fashion or (ii) revokes the holder’s Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless (without later submitting a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any ), the shares of Company Common Stock held by such holder shall be designated Non-Election shall have been properly made only if (i) Shares. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Buyer nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(c) Subject to Section 1.11, the allocation among the holders of shares of Company Common Stock of rights to receive the Cash Consideration and the Stock Consideration will be made as set forth in this Section 4.02 to the contrary, 2.4(c) (with the Exchange Agent mayto determine, consistent with Section 2.4(a), whether fractions of Cash Election Shares, Stock Election Shares or Non-Election Shares, as applicable, shall be rounded up or down).
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration, and, subject to Section 2.3 hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder’s Stock Election Shares being converted into the right to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and the Cash Election Shares shall be necessary treated in the following manner:
(A) if the Shortfall Number is less than or desirable equal to administer the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.3 hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such Electionsholder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration, and, subject to Section 2.3 hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery Elections shall be effectedmade by holders of Olsten Common Stock by mailing to the Exchange Agent (as hereinafter defined) a Form of Election. To be effective, a Form of Election must be properly completed, signed and risk submitted to the Exchange Agent and accompanied by Certificates (as hereinafter defined) representing the shares of loss Olsten Common Stock as to which the election is being made. Holders of record of shares of Olsten Common Stock who hold such shares as nominees, trustees or in other representative capacities (a "Representative") may submit multiple Forms of Elections, provided that such Representative certifies in writing that each such Form of Election covers all the shares of Olsten Common Stock held by each Representative for a particular beneficial owner. Olsten shall have the discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and title submitted or revoked and to Eligible Certificates shall pass, only upon proper delivery disregard immaterial defects in Forms of such Eligible Certificates to Election. The decision of Olsten (or the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent matters shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Formbinding. None of Parent, BEPC, Acquisition Sub or Neither Olsten nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Form of Election Formsubmitted to the Exchange Agent. Notwithstanding anything in The Exchange Agent shall make all computations contemplated by Section 2.01 and this Section 4.02 2.02 and all such computations shall be conclusive and binding on the holders of Olsten Common Stock. Forms of Election and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected and risk of loss and title to the contraryCertificates theretofore representing shares of Olsten Common Stock shall pass, only upon proper delivery of such Certificates to the Exchange Agent) in such form as Adecco and Olsten shall mutually agree shall be mailed on the date that the Olsten Proxy Statement is first mailed to the stockholders of Olsten.
(b) A holder of Olsten Common Stock who does not submit a Form of Election which is received by the Exchange Agent mayprior to the Election Deadline (as defined below) shall be deemed to have made a Non-Election. If Olsten or the Exchange Agent shall determine that any purported Cash Election or Stock Election was not properly made with respect to any or all of the shares of Olsten Common Stock of a holder, with such purported Cash Election or Stock Election shall be deemed to be of no force and effect and the written agreement stockholder making such purported Cash Election or Stock Election shall, for purposes hereof, be deemed to have made a Non-Election.
(c) Olsten shall use its reasonable best efforts to mail the Form of BEPC and Acquisition Sub, make any rules Election to all persons or procedures as are consistent with this Section 4.02 entities who become holders of Olsten Common Stock during the period between the record date for the implementation Olsten Special Meeting and 10:00 a.m., New York time, on the date five business days prior to the anticipated Effective Time and to make the Form of Elections Election available to all persons or entities who become holders of Olsten Common Stock subsequent to such day and no later than the revocation close of Elections as shall business on the business day prior to the Effective Time. A Form of Election must be necessary or desirable received by the Exchange Agent by 4:00 p.m. on the last business day prior to administer such Electionsthe Effective Time (the "Election Deadline") in order to be effective. All elections may be revoked in writing until the Election Deadline.
Appears in 1 contract
Sources: Merger Agreement (Olsten Corp)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC MTR and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company shall mutually agree (the “Election Form”) shall be mailed thirty-five (35) days prior to holders the anticipated Closing Date or on such other date as MTR and the Company shall mutually agree (the “Mailing Date”) to each holder of Company record of MTR Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth Business Day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (A) the number of record shares of Eligible Company Shares as such holder’s MTR Common Stock with respect to which such holder elects to receive the Per Share Stock Consideration (“Stock Election Shares”), (B) the number of immediately prior shares of such holder’s MTR Common Stock with respect to which such holder elects to receive the Per Share Cash Consideration (“Cash Election Deadline to elect (an “ElectionShares”) or (C) that such holder makes no election with respect to receive shares of New York Company Class C such holder’s MTR Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder“No Election Shares”). The holders of any Eligible Company Shares Any MTR Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York City time, on the business 30th day immediately preceding following the Mailing Date (or such other time and date of as MTR and the Company Shareholders Meeting may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe No Election Shares.
(c) BEPC and Acquisition Sub MTR shall make available one or more Election Forms as may reasonably be requested from time to time by all persons any person who become holders becomes a holder (or beneficial ownersowner) of Eligible Company Shares MTR Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more MTR Certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of MTR Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form only by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, unless a subsequent properly completed Election Form is submitted and actually received by the holder Exchange Agent by the Election Deadline, the shares of Eligible Company Shares MTR Common Stock represented by such Election Form shall become No Election Shares and MTR shall cause the applicable Certificates to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of MTR or the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub MTR or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. .
(e) Notwithstanding anything any other provision contained in this Agreement, the aggregate of the Per Share Cash Consideration to be received pursuant to clause (B) of Section 4.02 to 1.10(a)(ii) shall in no event exceed Thirty Million Dollars ($30,000,000.00) (such number of shares, the contrary“Cash Election Shares Limit”).
(f) Within three (3) Business Days after the Effective Time, Parent shall cause the Exchange Agent may, to effect the allocation among the former holders of MTR Common Stock of rights to receive the MTR Merger Consideration in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
Appears in 1 contract
Election Procedures. (ai) An Not less than thirty (30) days prior to the anticipated Effective Time, an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates theretofore representing shares of Redfish Common Stock or non-certificated shares represented by book entry (“Book Entry Shares”) shall pass, only upon proper delivery of such Eligible Certificates or Book Entry Shares, respectively, to the Exchange Agent) in such form as BEPC and Acquisition Sub Dorado shall reasonably specify and as shall be reasonably acceptable to the Company Redfish (the “Election Form”) shall be mailed at such time as Redfish and Dorado may agree (the “Mailing Date”) to holders each holder of Company record of shares of Redfish Common Stock of record as of five (5) business days prior to the record date for Mailing Date (the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company SharesElection Form Record Date”).
(bii) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Redfish Excluded Shares or Redfish Subsidiary Shares, to specify (i) the number of record shares of Eligible Company Shares as of immediately prior such holder’s Redfish Common Stock with respect to the Election Deadline to elect (an “Election”) which such holder elects to receive the Per Share Mixed Consideration, (ii) the number of shares of New York Company Class C such holder’s Redfish Common Stock with respect to which such holder elects to receive the Per Share Stock Election Consideration, (iii) the number of shares of such holder’s Redfish Common Stock with respect to which such holder elects to receive the Per Share Cash Election Consideration, or (iv) that such holder makes no election with respect to such holder’s Redfish Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder“Non-Election Shares”). The holders of any Eligible Company Shares Any Redfish Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business twentieth (20th) day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Redfish and Dorado shall agree) (the “Election Deadline”) (other than any shares of Redfish Common Stock that constitute Dissenting Shares as of such time) shall also be deemed not to have made an Electionbe Non-Election Shares.
(ciii) BEPC and Acquisition Sub Dorado shall make available one or more Election Forms as may reasonably be requested from time to time by all any persons who become holders (or beneficial owners) of Eligible Company Shares Redfish Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Redfish shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(div) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only (i) if accompanied by one or more Certificates (or customary affidavits and, if required by Dorado or the Surviving Entity, the posting by such person of a bond, in such reasonable amount as the Surviving Entity may direct, as indemnity against any claim that may be made against it with respect to such Certificate) and/or (ii) upon receipt of an “agent’s message” by the Exchange Agent or such other evidence of transfer of Book Entry Shares to the Exchange Agent as the Exchange Agent may reasonably request, collectively representing all shares of Redfish Common Stock covered by such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth Form, together with duly executed transmittal materials included in the Election Form. After Any Election Form may be revoked or changed by the person submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline. In the event an Election Form is validly revoked prior to the Election Deadline, the shares of Redfish Common Stock represented by such Election Form shall become Non-Election Shares and Dorado shall cause the Certificates representing such shares of Redfish Common Stock or Book-Entry Shares to be promptly returned without charge to the person submitting the Election Form upon written request to that effect from the holder who submitted the Election Form, except to the extent (if any) a subsequent election is properly made with respect to any Eligible Company Shares, no further registration of transfers or all of such Eligible Company Shares shall be made on shares of Redfish Common Stock. Subject to the transfer books terms of the Company unless this Agreement and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent Agent, in consultation with Dorado and as Redfish, shall have reasonable discretion to determine whether any election, revocation or change has been properly or timely made and to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of ParentDorado, BEPC, Acquisition Sub Redfish or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form NPB and other appropriate and customary transmittal materials (which PFI shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to cause the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable Agent to the Company (the “mail an Election Form”) shall be mailed Form to holders of Company PFI Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding Stocknot more than sixty (60) Business Days and not held by any Parent Stockholder shall be referred less than twenty (20) Business Days prior to as “Eligible Company Shares”.
(b) the Election Deadline. Each Election Form shall permit the holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation):
(i) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive the Common Stock Consideration with respect to all or a portion of their shares of New York Company Class C PFI Common Stock (and, upon completion of the Parent Exchange, Parent LP Units“Common Stock Election Shares”); or
(ii) for all of to elect to receive the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Cash Consideration with respect to which the Exchange Agent has not received an effective, properly completed Election Form on all or before 5:00 p.m., New York time, on the business day immediately preceding the date a portion of the Company Shareholders Meeting their shares of PFI Common Stock (the “Cash Election DeadlineShares”) ). The Exchange Agent shall be deemed not use reasonable efforts to have made an Election.
(c) BEPC and Acquisition Sub shall make the Election Form available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares PFI Common Stock during the period between the record date for the Company Shareholders Meeting mailing of the Election Form and the close of business on Election Deadline. Any holder’s election shall have been properly made only if the business day prior to Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by certificates that immediately prior to the Company shall provide Effective Date represented issued and outstanding shares of PFI Common Stock (the “PFI Certificates”) to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such PFI Certificates as set forth in such Election Form from a firm which is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act) provided that such PFI Certificates are in fact delivered to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
by the time set forth in such guarantee of delivery). If a holder of PFI Common Stock either: (di) Any does not submit a properly completed Election Form may be revoked before the Election Deadline; (ii) revokes an Election Form prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless and does not resubmit a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the properly completed Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline ; or (iiiii) such Election has been made at fails to perfect his, her or prior to the Election Deadline its dissenters’ rights pursuant to subsection 2.06 of this Agreement, the procedures set forth in shares of PFI Common Stock held by such holder shall be designated “No-Election Shares.” Nominee record holders who hold PFI Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Common Stock Election FormShares, Cash Election Shares and No-Election Shares. After an For purposes of this Section 2.02, any Dissenting PFI Shares shall be deemed to be Cash Election is validly made Shares and, with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryshares, the Exchange Agent may, with the written agreement holders thereof shall in no event be classified as holders of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsReallocated Common Stock Shares.
Appears in 1 contract
Sources: Merger Agreement (Peoples First Inc)
Election Procedures. Each holder of record of shares of Company Common Stock to be converted into the right to receive the Cash Consideration and/or the Stock Consideration in accordance with, and subject to, Sections 1.4(c)(i) and 1.5 (a “Holder”) shall have the right, subject to the limitations set forth in this Article I, to submit an election in accordance with the following procedures:
(a) An election Each Holder may specify in a request made in accordance with the provisions of this Section 1.6 (herein called an “Election”)
(i) the number of whole shares of Company Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election and (ii) the number of whole shares of Company Common Stock owned by such
(b) GWBI shall prepare a form and other reasonably acceptable to Company, including appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC prepared by GWBI and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”), so as to permit the Holders to exercise their right to make an Election.
(c) GWBI (i) shall be mailed initially make available and mail the Election Form not less than twenty (20) Business Days prior to holders of Company Common Stock the anticipated Election Deadline, or on such other date as the parties may agree, to Holders of record as of two (2) Business Days prior to such mailing date, and (ii) following such mailing date, shall use all reasonable efforts to make available as promptly as possible a Election Form to any Holder who requests such Election Form prior to the record Election Deadline. The time period between such mailing date for and the Company Shareholders MeetingElection Deadline is referred to herein as the “Election Period”.
(d) Any Election shall have been made properly only if the Exchange Agent shall have received, during the Election Period, an Election Form properly completed and signed (including duly executed transmittal materials included in the Election Form) and accompanied by any Old Certificates representing all certificated shares to which such Election Form relates or by an appropriate customary guarantee of delivery of such Old Certificates, as set forth in such Election Form, from a member of any registered national securities exchange or a commercial bank or trust company in the United States. As used herein, unless otherwise agreed in advance by the parties, “Election Deadline” means 5:00 p.m. local time (in the city in which the principal office of the Exchange Agent is located) on the date which the parties shall agree is as near as practicable to three (3) Business Days preceding the Closing Date. The parties shall cooperate to issue a press release reasonably satisfactory to each of them announcing the date of the Election Deadline not more than fifteen (15) Business Days before, and at least five (5) Business Days prior to, the Election Deadline. Any shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Holder thereof shall not, as of the Election Deadline, have made an Election by submission to the Exchange Agent has not received of an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an ElectionNon- Election Shares.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. (a) An election form Election forms and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofor representing shares of Cornerstone Common Stock (“Certificates”) and any non-certificated shares of Cornerstone Common Stock (“Book Entry Shares”) shall pass, only upon proper delivery of such Eligible Certificates or Book Entry Shares to an exchange agent designated by Summit (the “Exchange Agent”)) and acceptable to Cornerstone in its reasonable discretion, in such form as BEPC Summit and Acquisition Sub Cornerstone shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election FormForms”) shall be mailed at least twenty-five (25) days prior to holders the anticipated Closing Date (the “Mailing Date”) to each holder of Company record of Cornerstone Common Stock of record as of five (5) Business Days prior to the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as Mailing Date (“Eligible Company SharesElection Form Record Date”).
(ba) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior ), subject to the allocation procedures of Section 2.2(e), to make a Cash Election, a Stock Election Deadline or no election with respect to elect (an “Election”) to receive each of such holder’s shares of New York Company Class C Cornerstone Common Stock. Any Cornerstone Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York Eastern time, on the business twentieth (20th) day immediately preceding following the Mailing Date (or such other time and date of the Company Shareholders Meeting as Summit and Cornerstone may mutually agree) (the “Election Deadline”) shall also be deemed not to have made an Electionbe No Election Shares.
(cb) BEPC and Acquisition Sub Summit shall make available one or more an Election Forms as may reasonably be requested from time Form to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Cornerstone Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company Cornerstone shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein. Cornerstone acknowledges that no deadlines for mailing Election Forms contained elsewhere in this Agreement shall be applicable to such shareholders and that the election requests of such shareholders need not be honored.
(dc) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) or Book Entry Shares representing all shares of Cornerstone Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. Following the Eligible Company Shares subject thereto in accordance with Election Deadline, an Election Form may not be revoked or changed by the procedures set forth thereinperson submitting such Election Form. If In the event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Cornerstone Common Stock represented by such Election Form shall become No Election Shares and Summit shall cause the Certificates or Book Entry Shares to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in person submitting the Election Form prior upon written request to that effect from the person who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline sole discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Summit nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything .
(d) Within five (5) Business Days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to the contrarywhich case as soon thereafter as practicable, Summit shall cause the Exchange Agent may, to effect the allocation among the holders of Cornerstone Common Stock of rights to receive the Stock Consideration or the Cash Consideration in the Merger in accordance with the written agreement Election Forms, subject to Section 2.2(e).
(e) Notwithstanding any other provision contained in this Agreement, the total number of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this shares of Cornerstone Common Stock to be converted into the right to receive the Stock Consideration pursuant to Section 4.02 for the implementation of Elections and the revocation of Elections as 2.1 shall be necessary or desirable that number equal to administer such Electionsthe product (rounded up to the nearest whole number) of (i) 0.50 multiplied by (ii) the number of outstanding shares of Cornerstone Common Stock (the “Stock Conversion Number”). All other shares of Cornerstone Common Stock shall be converted into the Cash Consideration.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub AMGP shall reasonably specify and as shall be reasonably acceptable to the Company AMLP (the “Election Form”) shall be mailed no less than thirty (30) days prior to holders the anticipated Closing Date or on such other date as AMGP and AMLP shall mutually agree (the “Mailing Date”) to each holder of Company Common Stock of record Public Eligible Units as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) to specify (i) the number of record such holder’s Public Eligible Units with respect to which such holder makes a Public Mixed Election; (ii) the number of such holder’s Public Eligible Company Shares as Units with respect to which such holder makes a Public Cash Election; and (iii) the number of immediately prior such holder’s Public Eligible Units with respect to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C which such holder makes a Public Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Election. Any Public Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Units with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business later of (A) the twentieth (20th) day immediately preceding following the Mailing Date and (B) ten (10) days prior to the anticipated Closing Date (or such other time and date of the Company Shareholders Meeting as AMGP and AMLP shall agree) (the “Public Election Deadline”) shall be deemed not to be “Public No Election Units”. The holders of such Public No Election Units shall be deemed to have made an Electiona Public Mixed Election with respect to such Public No Election Units.
(c) BEPC and Acquisition Sub AMGP shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares AMLP Common Units between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Public Election Deadline, and the Company AMLP shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Public Election Deadline. After a Public Mixed Election, a Public Cash Election or a Public Common Stock Election is validly made with respect to any Public Eligible Units, any subsequent transfer of such Public Eligible Units shall automatically revoke such election. Any Election Form may be revoked or changed by the person submitting such Election Form, by written notice received by the Exchange Agent prior to the Public Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Public Election Deadline, the holder of Public Eligible Company Shares Units represented by such Election Form shall become Public No Election Units, except to the extent a subsequent election is properly made with respect to any or all of such Public Eligible Units prior to the Public Election Deadline, in which case such subsequent election shall be deemed to have be validly made no Election, unless a subsequent Election is submitted by with respect to such Public Eligible Units. Subject to the holder terms of such Eligible Company Shares in accordance with the procedures set forth in this Agreement and of the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good-faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub parties hereto or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: Simplification Agreement (Antero Midstream Partners LP)
Election Procedures. Each person entitled to make the election referred to in Section 3.03 above shall (ai) An make the election form by written notice delivered to Acquiror not earlier than the twentieth business day after the date hereof and other appropriate no later than the twenty-fifth business day after the date hereof, subject to the Company's ability to extend for an additional 10 business days (the "Election Deadline") and customary transmittal materials (ii) at the time of such election, execute and deliver to Acquiror a retired member agreement (to the extent such person does not sign a Member Agreement) which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates contain terms substantially identical to the Exchange Agent) terms contained in the Member Agreement, except that such form as BEPC retired member agreement shall not contain the terms set forth in Sections 1 (except with respect to termination), 2(a), 2(e), 3(i), 5 through 13 and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record as 22 of the record date for the Company Shareholders MeetingMember Agreement. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall Any election may be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to revoked until the Election Deadline by written notice to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not Acquiror received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the such Election Deadline, and at which time such election shall be irrevocable. In the Company shall provide event that either a Withdrawn Member or a holder of a Managing Director Subordinated Note fails to make the Exchange Agent all information reasonably necessary for it election referred to perform as specified herein.
(d) Any Election Form may be revoked prior to in Section 3.03 by the Election Deadline with respect to a Withdrawn Member Interest or a Managing Director Subordinated Note, then the Eligible Company Shares subject thereto shall (i) in the case of a Withdrawn Member Interest, redeem such amount in accordance with the procedures set forth therein. If an Election Form is revoked prior to terms of the Election DeadlineOperating Agreement, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or and (ii) in the case of a Managing Director Subordinated Note, have such Election has been made at note redeemed by the Company, in each case, effective as of the Effective Time. In connection therewith, the Company agrees to take, or prior cause to the Election Deadline be taken, all necessary steps to redeem pursuant to the procedures set forth terms thereof, as of the Effective Time, all outstanding Withdrawn Member Interests or Managing Director Subordinated Notes not subject to an effective election (it being understood that Section 3.03 and 3.04 will not result in the Election Forma duplication of amounts owed to Withdrawn Members or holders of Managing Director Subordinated Notes). After an Election is validly made with respect Shares of Acquiror Common Stock and Acquiror Subordinated Notes issued pursuant to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares this Article III shall be made on issued at or promptly after the transfer books Effective Time consistent with the payment of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked Merger Consideration pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections3.02.
Appears in 1 contract
Election Procedures. Not less than forty-five (a45) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates business days prior to the anticipated Effective Time or on such other date as ACNB and NW Bancorp shall mutually agree (the “Mailing Date”), ACNB shall cause the Exchange Agent) Agent to mail an Election Form in such form as BEPC ACNB and Acquisition Sub NW Bancorp shall reasonably specify and mutually agree to each holder of record of NW Bancorp Common Stock as shall be reasonably acceptable of the close of business on the fifth (5th) business day prior to the Company Mailing Date (the “Election FormForm Record Date”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation documentation):
(i) To elect to receive the Stock Consideration with respect to all of their shares of NW Bancorp Common Stock (the “Stock Election Shares”); or
(ii) To elect to receive the Cash Consideration with respect to all of their shares of NW Bancorp Common Stock (the “Cash Election Shares”); or
(iii) To elect to receive the Stock Consideration with respect to a specified number of their shares of NW Bancorp Common Stock and instructions) the Cash Consideration with respect to their remaining shares of NW Bancorp Common Stock (a “Mixed Election”). With respect to each holder of record of Eligible Company NW Bancorp Common Stock who makes a Mixed Election, their shares of NW Bancorp Common Stock to be converted into the right to receive the Stock Consideration shall be treated as Stock Election Shares and their shares of NW Bancorp Common Stock to be converted into the right to receive the Cash Consideration shall be treated as Cash Election Shares, in each case subject to the allocation rules set forth in Section 1.02(l) of immediately this Agreement. The Exchange Agent shall use reasonable efforts to make the Election Form available to all Persons who become holders of NW Bancorp Common Stock during the period between the Election Form Record Date and the Election Deadline. If holders of NW Bancorp Common Stock: (i) do not submit a properly completed Election Form before the Election Deadline; (ii) revoke an Election Form prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has and do not received an effective, resubmit a properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline ; or (iiiii) such Election has been made at fail to perfect his, her or prior to the Election Deadline its dissenters’ rights pursuant to Section 1.02(i)(v) of this Agreement, the procedures set forth in shares of NW Bancorp Common Stock held by such holder shall be deemed “No Election Shares”. Nominee record holders who hold NW Bancorp Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Stock Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration Cash Election Shares and No Election Shares. For purposes of transfers of such Eligible Company Section 1.02(j), any Dissenting NW Bancorp Shares shall be made on the transfer books of the Company unless and until such deemed to be Cash Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election provided that Dissenting NW Bancorp Shares shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall circumstance be necessary or desirable to administer such Electionsconverted into Reallocated Stock Shares.
Appears in 1 contract
Election Procedures. Subject to the terms of the Exchange Agent Agreement, each holder of record of shares of IAB Common Stock issued and outstanding immediately prior to the Effective Time (a "Holder") shall have the right, subject to the limitations set forth in this Article 3, to submit an election on or prior to the Election Deadline in accordance with the following procedures:
(a) An election Each Holder may specify in a request made in accordance with the provisions of this Section 3.1 (herein called an "Election") (i) the number of shares of IAB Common Stock owned by such Holder with respect to which such Holder desires to make a Stock Election (ii) the number of shares of IAB Common Stock owned by such Holder with respect to which such Holder desires to make a Cash Election or (iii) the number of shares of IAB Common Stock owned by such Holder with respect to which such Holder makes no election.
(b) BCB shall prepare a form and other appropriate and customary transmittal materials reasonably acceptable to IAB (the "Form of Election") (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible the Certificates to the Exchange Agent) so as to permit those holders to exercise their right to make an Election prior to the Election Deadline.
(c) Prior to the Mailing Date, BCB shall appoint an exchange agent reasonably acceptable to IAB (the "Exchange Agent"), for the purpose of receiving Elections and exchanging shares of IAB Common Stock represented by Certificates for Merger Consideration, pursuant to an exchange agent agreement entered into prior to the Mailing Date (the "Exchange Agent Agreement"). The Form of Election and instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration shall be mailed no more than 40 Business Days and no less than 20 Business Days prior to the anticipated Closing Date or on such other date as BCB and IAB shall mutually agree (the "Mailing Date") to each Holder of record of a Certificate, in such form as BEPC IAB and Acquisition Sub BCB may reasonably agree. Subject to the terms of the Exchange Agent Agreement, any Election shall reasonably specify have been made properly only if the Exchange Agent shall have received, by the Election Deadline, a Form of Election and related transmittal materials properly completed and validly executed and accompanied by Certificates representing the shares of IAB Common Stock to which such Form of Election relates, duly endorsed in blank or otherwise in acceptable form or by an appropriate customary guarantee of delivery of such Certificates, as set forth in such Form of Election, from a firm that is an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the Exchange Act); provided, that such Certificates are in fact delivered to the Exchange Agent by the time required in such guarantee of delivery with any additional documents specified in the procedures set forth in the Form of Election. Failure to deliver shares of IAB Common Stock covered by such a guarantee of delivery within the time set forth on such guarantee shall be reasonably acceptable deemed to the Company (the “Election Form”) shall be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meetinginvalidate any otherwise properly made Election, unless otherwise determined by BCB, in its sole and absolute discretion. As used herein, shares unless otherwise agreed in advance by IAB and BCB, "Election Deadline" means 5:00 p.m. local time (in the city in which the principal office of Company Common Stock issued the Exchange Agent is located) on the date that is five Business Days prior to the anticipated Closing Date. BCB shall issue a press release announcing the date of the Election Deadline not more than 15 Business Days before, and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”at least five Business Days prior to, the Election Deadline.
(bd) Each Any Holder may, at any time prior to the Election Form shall permit Deadline, change or revoke his, her or its Election only by written notice received by the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately Exchange Agent prior to the Election Deadline accompanied by a properly completed and signed revised Form of Election or by withdrawal prior to elect (an “Election”) the Election Deadline of his, her or its Certificates, or of the guarantee of delivery of such Certificates, or any documents, previously deposited with the Exchange Agent. In the event a Form of Election is revoked prior to receive the Election Deadline, unless a subsequent properly completed Form of Election together with the revoking Holder's Certificates and related transmittal materials is submitted and actually received by the Exchange Agent by the Election Deadline, the shares of New York Company Class C IAB Common Stock represented by such revoked Form of Election shall become Non-Electing Shares and BCB shall cause the Certificates to be promptly returned without charge to the Holder revoking such prior Election. Subject to the terms of the Exchange Agent Agreement and this Agreement, the Exchange Agent shall have reasonable discretion to determine if any Election is not properly made with respect to any shares of IAB Common Stock (andneither BCB nor IAB nor the Exchange Agent being under any duty to notify any shareholder of any such defect); in the event the Exchange Agent makes such a determination, upon completion such Election shall be deemed to be not in effect, and the shares of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held IAB Common Stock covered by such holderElection shall, for purposes hereof, be deemed to be Non-Electing Shares, unless a proper Election is thereafter timely made with respect to such shares. The holders Any shares of any Eligible Company Shares IAB Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election and validly executed Form of Election, together with the Certificates and related transmittal materials on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall also be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election DeadlineNon-Electing Shares.
(e) Any Election Subject to the terms of the Exchange Agent Agreement, BCB, in the exercise of its reasonable discretion, shall have been properly made only if the right to make all determinations, not inconsistent with the terms of this Agreement, governing (i) the Exchange Agent shall have received a properly completed Election Form manner and extent to which Elections are to be taken into account in making the determinations prescribed by the Election Deadline or Section 2.2, (ii) such Election has been made the issuance and delivery of certificates or, at or prior to the Election Deadline option of BCB, evidence of shares in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as "BCB Certificates") representing the procedures set forth number of shares of BCB Common Stock into which shares of IAB Common Stock are converted into the right to receive in the Election Form. After an Election is validly made with respect Merger and (iii) the method of payment of cash for shares of IAB Common Stock converted into the right to any Eligible Company Shares, no further registration receive the Cash Consideration and cash in lieu of transfers fractional shares of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownershipBCB Common Stock.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (BCB Bancorp Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) ), including a letter of transmittal and related instructions, which Election Form and such other documents shall be in the form as Parent and the Company shall reasonably agree upon, shall be initially mailed not less than twenty (20) Business Days prior to holders the anticipated Election Deadline or on such other date as Parent and the Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record as of the record close of business on the fifth (5th) Business Day prior to the Mailing Date or on such other date for as Parent and the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as mutually agree (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms (and other related documents) as may reasonably be requested from time to time by all persons Persons who become record holders (or beneficial owners) of Eligible Company Shares Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day Business Day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(c) Each Election Form shall permit the record holder of Company Common Stock to specify: (x) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Mixed Election; (y) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Cash Election; and (z) the number of shares of such holder’s Company Common Stock with respect to which such holder makes a Stock Election.
(d) Any shares of Company Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., Eastern Time, on the date that is three (3) Business Days prior to the Closing Date (or such other time and date as Parent and the Company shall agree) (the “Election Deadline”) (other than Canceled Shares) shall be deemed to be “No Election Shares” and the holders of such No Election Shares shall be deemed to have made a Mixed Election with respect to such No Election Shares. The Company and Parent shall cooperate to issue a press release reasonably satisfactory to each of them announcing the date of the Election Deadline at least five (5) Business Days prior to the Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(e) Any election shall have been effective only if the Exchange Agent shall have actually received a properly completed Election Form (including any required letter of transmittal, any Certificates and other documents required by the Election Form) or any required letter of transmittal and the related instructions, by the Election Deadline. Any Election Form may be revoked or changed by the authorized Person properly submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Common Stock represented by such Election Form shall be deemed become No Election Shares, except to have made no Election, unless the extent a subsequent Election election is submitted by the holder properly made with respect to any or all of such Eligible shares of Company Shares in accordance with the procedures set forth in the Election Form Common Stock prior to the Election Deadline. All elections shall be automatically deemed revoked upon receipt by the Exchange Agent of written notification from the parties that this Agreement has been terminated in accordance with the terms hereof. If an election is revoked, any Certificates and other documents received by the Exchange Agent shall be promptly returned to the shareholder submitting the same to the Exchange Agent.
(ef) Any Subject to the terms of this Agreement and of the Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub the Company or the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything .
(g) As promptly as practicable following the First Effective Time, and in this Section 4.02 to no event later than the contrarythird (3rd) Business Day thereafter, the Exchange Agent mayshall make all computations contemplated by Section 2.1(a)(ii).
(h) Without limitation of Section 5.3, with the written agreement of BEPC Company and Acquisition SubParent shall solicit Cash Elections, Stock Elections and Mixed Elections under this Agreement in compliance with, and shall make any rules or procedures as and all filings that are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsadvisable under, all applicable rules and regulations of the SEC.
Appears in 1 contract
Sources: Merger Agreement (Steelcase Inc)
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery Election Form shall be effected, and risk included with each copy of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company (the “Election Form”) shall be Prospectus/Proxy Statement/Prospectus mailed to holders of Company BFC Common Stock of record as of the record date for the Company Shareholders MeetingStock. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or in the case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation and instructionsdocumentation):
(i) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive the Common Stock Consideration with respect to all or a portion of his/her/its shares of New York Company Class C BFC Common Stock (and, upon completion of the Parent Exchange, Parent LP Units"Common Stock Election Shares"); or
(ii) for all of to elect to receive the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Cash Consideration with respect to which all or a portion of his/her/its shares of BFC Common Stock (the "Cash Election Shares"). The Exchange Agent has not received an effective, properly completed shall use reasonable efforts to make the Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not available to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares BFC Common Stock during the period between the record date for the Company Shareholders Meeting mailing of the Election Form and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) . Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election holder's election shall have been properly made only if (i) the Exchange Agent shall have received at its designated office, by the Election Deadline, a properly completed and signed Election Form accompanied by certificates that immediately prior to the Effective Date represented issued and outstanding shares of BFC Common Stock (the "BFC Certificates") to which such Election Form relates, in form acceptable for transfer (or by an appropriate guarantee of delivery of such BFC Certificates as set forth in such Election Form from a firm which is an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the Exchange Act) provided that such BFC Certificates are in fact delivered to the Exchange Agent by the time set forth in such guarantee of delivery). If a holder of BFC Common Stock either: (i) does not submit a properly completed Election Form by before the Election Deadline; (ii) revokes an Election Form prior to the Election Deadline and does not resubmit a properly completed Election Form prior to the Election Deadline or (iiiii) such Election has been made at fails to perfect his, her or prior to the Election Deadline its dissenters' rights pursuant to subsection 2.05 of this Agreement, the procedures set forth in shares of BFC Common Stock held by such holder shall be designated "No-Election Shares." Nominee record holders who hold BFC Common Stock on behalf of multiple beneficial owners shall be required to indicate how many of the shares held by them are Common Stock Election FormShares, Cash Election Shares and No-Election Shares. After an For purposes of this Section 2.02, any Dissenting BFC Shares shall be deemed to be Cash Election is validly made Shares and, with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contraryshares, the Exchange Agent may, with the written agreement holders thereof shall in no event be classified as holders of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such ElectionsReallocated Common Stock Shares.
Appears in 1 contract
Election Procedures. (a) An Each Person who is a record holder of shares of Company Common Stock (other than Excluded Shares) as of immediately prior to the First Effective Time shall be entitled to specify the number of such holder’s shares of Company Common Stock with respect to which such holder makes a Cash Election or a Stock Election in accordance with (and subject to) this Section 2.05.
(b) Parent shall prepare and file as an exhibit to the Form F-4 a form of election in form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub shall reasonably specify and as shall be substance reasonably acceptable to the Company (the “Form of Election”). At least twenty (20) Business Days prior to the anticipated First Effective Time (the “Mailing Date”), Parent shall instruct the Exchange Agent to mail the Form of Election Form”) shall be mailed with the Proxy Statement/Prospectus to all Persons who are record holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder as of five (5) Business Days prior to the Mailing Date. The Form of Election shall be referred to as “Eligible used by each record holder of shares of Company Shares”.
Common Stock (b) Each Election Form shall permit or, in the holder (or case of nominee record holders, the beneficial owner through appropriate proper instructions and customary documentation documentation) to make a Cash Election or a Stock Election. In the event that a holder fails to make a Cash Election or a Stock Election with respect to shares of Company Common Stock held or beneficially owned by such holder by the Election Deadline, then such holder shall be deemed to have made a Stock Election with respect to such shares (each such share, a “Non-Electing Company Share”). During the period from the mailing of the Form of Election and instructions) the Election Deadline, Parent shall use its reasonable best efforts to make the Form of record of Eligible Company Shares as of immediately Election available to all Persons who become at or prior to the Election Deadline (or who are expected to elect (an “Election”become at or prior to the Election Deadline) to receive record holders of shares of New York Company Class C Common Stock Stock.
(and, upon completion of the Parent Exchange, Parent LP Unitsc) for all of the Eligible Company Shares held by such Any holder. The holders of any Eligible Company Shares with respect to which ’s election shall have been properly made only if the Exchange Agent has not shall have received an effective, properly completed Election Form on or before at its designated office by 5:00 p.m., New York City time, on the business day immediately date that is three (3) Business Days preceding the date of the Company Shareholders Meeting Closing Date (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC ), a Form of Election properly completed and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time signed and accompanied by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented any additional documents required by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Form of Election. After a Cash Election or a Stock Election is validly made with respect to any shares of Company Common Stock (but, for the avoidance of doubt, excluding any Non-Electing Company Shares), no further registration of transfers of such shares shall be made on the stock transfer books of the Company, unless and until such Cash Election or Stock Election is properly revoked pursuant to Section 2.05(e) and any procedures set forth in the Form of Election.
(d) Parent and the Company shall publicly announce the anticipated Election Deadline at least five (5) Business Days prior to the anticipated Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(e) Any Cash Election shall have been properly made only if (i) or Stock Election may be revoked with respect to all or a portion of the shares of Company Common Stock subject thereto by the holder who submitted the applicable Form of Election by written notice received by the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election FormDeadline. After an Election In addition, all Cash Elections and Stock Elections shall automatically be revoked if this Agreement is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked terminated in accordance with the procedures set forth in the Article X. If a Cash Election Form. In the event any or Stock Election is made by a beneficial owner revoked, the shares of Eligible Company Shares, Common Stock as to which such Election election previously applied shall be deemed automatically revoked treated as Stock Electing Shares in accordance with Section 2.05(a) unless a new election is submitted by the event of any transfer of such beneficial ownershipholder within the period during which elections are permitted to be made pursuant to Section 2.05(d).
(f) The reasonable good faith determination of the Exchange Agent (or the reasonable determination of Parent, in the event that the Exchange Agent declines to make any such determination) shall be conclusive and binding as to whether or not an Election Cash Elections and/or Stock Elections shall have been properly made or revoked pursuant to the Election Form, this Section 2.05 and as to when Cash Elections, Stock Elections and and/or revocations of Elections were received by the Exchange Agent. The Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of (or Parent, BEPCacting reasonably, Acquisition Sub or in the event that the Exchange Agent declines to make the following computation) shall also make all computations contemplated by Section 2.03(a), and absent manifest error this computation shall be under any obligation to notify any person of any defect in a completed Election Formconclusive and binding. Notwithstanding anything in this Section 4.02 to the contrary, the The Exchange Agent may, with the written agreement of BEPC and Acquisition SubParent (subject in each case to the consent of the Company, which shall not be unreasonably withheld, delayed or conditioned), make any rules or procedures as are consistent with this Section 4.02 2.05 for the implementation of the Cash Elections and the revocation of Stock Elections provided for in this Agreement as shall be necessary or desirable to administer such effect these Cash Elections and Stock Elections.
(g) Without limitation of Section 8.03, each of Parent and the Company shall solicit Cash Elections and Stock Elections under this Agreement in compliance with, and shall make any and all filings that are necessary or advisable under, all applicable rules and regulations of the SEC.
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Election Procedures. 3.2.1. Holders of record of First Star Common Stock and First Star Preferred Stock may elect to receive shares of ESSA Common Stock or cash in exchange for their shares of First Star Common Stock or First Star Preferred Stock, respectively. The total number of shares of First Star Common Stock and First Star Preferred Stock to be converted into Stock Consideration pursuant to this Section 3.2.1 shall be equal to the product obtained by multiplying (ax) the number of shares of First Star Common Stock and First Star Preferred Stock outstanding immediately prior to the Effective Time by (y) 0.50 (the “Stock Conversion Number”). All other shares of First Star Common Stock and First Star Preferred Stock shall be converted into Cash Consideration. Notwithstanding any other section herein, in no event shall the aggregate Cash Consideration exceed 50% of the aggregate Merger Consideration.
3.2.2. An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) material in such form as BEPC ESSA and Acquisition Sub First Star shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election Form”) shall will be mailed to holders of Company Common Stock of record as of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued no more than forty (40) business days and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
no less than twenty (b20) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately business days prior to the Election Deadline to elect or on such earlier date as ESSA and First Star shall mutually agree (an the “ElectionMailing Date”) to receive each holder of record of First Star Common Stock and First Star Preferred Stock permitting such holder, subject to the allocation and election procedures set forth in this Section 3.2, (i) to specify the number of shares of New York Company Class C First Star Common Stock and First Star Preferred Stock owned by such holder with respect to which such holder desires to make a Cash Election in accordance with the provision of Section 3.1.4, (andii) to specify the number of shares of First Star Common Stock and First Star Preferred Stock owned by such holder with respect to which such holder desires to make a Stock Election, upon completion in accordance with the provision of Section 3.1.3, or (iii) to indicate that such record holder has no preference as to the Parent Exchangereceipt of cash or ESSA Common Stock for such shares. Holders of record of shares of First Star Common Stock and First Star Preferred Stock who hold such shares as nominees, Parent LP Unitstrustees or in other representative capacities (a “Representative”) for may submit multiple Election Forms, provided that each such Election Form covers all the shares of the Eligible Company Shares First Star Common Stock and First Star Preferred Stock held by such holdereach Representative for a particular beneficial owner. The holders Any shares of any Eligible Company Shares First Star Common Stock and First Star Preferred Stock with respect to which the holder thereof shall not, as of the Election Deadline (as defined in Section 3.2.3), have made an election by submission to the Exchange Agent has not received of an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub Non-Election Shares. ESSA shall make available one or more Election Forms as may reasonably be requested in writing from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares First Star Common Stock between the record date for the Company Shareholders Meeting initial mailing of Election Forms and the close of business on the business day prior to the Election DeadlineDeadline (as defined in Section 3.2.3), and the Company First Star shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
Appears in 1 contract
Election Procedures. 3.2.1. Holders of CLFC Common Stock may elect to receive shares of First Clover Leaf Financial Common Stock or cash, or a combination thereof (ain all cases without interest) in exchange for their shares of CLFC Common Stock in accordance with the following procedures, provided that, in the aggregate, and subject to the provisions of Section 3.2.6, 70% of the total number of shares of CLFC Common Stock issued and outstanding at the Effective Time, including any Dissenting Shares but excluding any Treasury Stock (the "Stock Conversion Number"), shall be converted into the Stock Consideration and the remaining outstanding shares of CLFC Common Stock shall be converted into the Cash Consideration. Shares of CLFC Common Stock as to which a Cash Election (including, pursuant to a Mixed Election) has been made are referred to herein as "Cash Election Shares." Shares of CLFC Common Stock as to which a Stock Election has been made (including, pursuant to a Mixed Election) are referred to herein as "Stock Election Shares." Shares of CLFC Common Stock as to which no election has been made (or as to which an Election Form is not returned properly completed) are referred to herein as "Non-Election Shares." The aggregate number of shares of CLFC Common Stock with respect to which a Stock Election has been made is referred to herein as the "Stock Election Number."
3.2.2. An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible the Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) ), in such form as BEPC CLFC and Acquisition Sub First Federal Financial shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “"Election Form”) "), shall be mailed no more than 40 business days and no less than 20 business days prior to holders the anticipated Effective Time or on such earlier date as CLFC and First Federal Financial shall mutually agree (the "Mailing Date") to each holder of Company record of CLFC Common Stock of record as of five business days prior to the record date for Mailing Date (the Company Shareholders Meeting"Election Form Record Date"). As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior such holder, subject to the Election Deadline allocation and election procedures set forth in this Section 3.2, (i) to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) Cash Consideration for all of the Eligible Company Shares shares of CLFC Common Stock held by such holder (a "Cash Election"), in accordance with Section 3.1.2, (ii) to elect to receive the Stock Consideration for all of such shares (a "Stock Election"), in accordance with Section 3.1.2, (iii) to elect to receive the Stock Consideration for a part of such holder's CLFC Common Stock and the Cash Consideration for the remaining part of such holder's CLFC Common Stock (a "Mixed Election"), or (iv) to indicate that such record holder has no preference as to the receipt of cash or First Clover Leaf Financial Common Stock for such shares (a "Non-Election"). The holders A holder of any Eligible Company Shares record of shares of CLFC Common Stock who holds such shares as nominee, trustee or in another representative capacity (a "Representative") may submit multiple Election Forms, provided that each such Election Form covers all the shares of CLFC Common Stock held by such Representative for a particular beneficial owner. Any shares of CLFC Common Stock with respect to which the holder thereof shall not, as of the Election Deadline, have made an election by submission to the Exchange Agent has not received of an effective, properly completed Election Form shall be deemed Non-Election Shares. All Dissenting Shares shall be deemed Cash Election Shares, and with respect to such shares the holders thereof shall in no event receive consideration comprised of First Clover Leaf Financial Common Stock, subject to Section 3.1.5; provided, however, that for purposes of making the proration calculations provided for in this Section 3.2, only Dissenting Shares as existing at the Effective Time shall be deemed Cash Election Shares.
3.2.3. To be effective, a properly completed Election Form shall be submitted to the Exchange Agent on or before 5:00 p.m., New York Edwardsville, Illinois time, on the business 25th day immediately preceding following the Mailing Date (or such other time and date as First Federal Financial and CLFC may mutually agree) (the "Election Deadline"); provided, however, that the Election Deadline may not occur on or after the Closing Date. First Federal shall use all reasonable efforts to make available as promptly as possible an Election Form to any holder of record of CLFC Common Stock who requests such Election Form following the initial mailing of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company . CLFC shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more Certificates (or customary affidavits and indemnification regarding the loss or destruction of such Certificates or the guaranteed delivery of such Certificates) representing all shares of CLFC Common Stock covered by such Election Form, together with duly executed transmittal materials included with the Election Form. If a CLFC stockholder either (i) does not submit a properly completed Election Form in a timely fashion or (ii) revokes its Election Form prior to the Election Deadline (without later submitting a properly completed Election Form prior to the Election Deadline), the shares of CLFC Common Stock held by such stockholder shall be designated as Non-Election Shares. Any Election Form may be revoked or changed by the person submitting such Election has been made Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or change is actually received by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. First Federal Financial shall cause the Certificate or Certificates relating to any revoked Election Form to be promptly returned without charge to the procedures set forth in person submitting the Election Form to the Exchange Agent. Subject to the terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive have discretion to determine when any election, modification or revocation is received and binding as to whether any such election, modification or not an Election shall have revocation has been properly made or revoked pursuant made.
3.2.4. If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration, and each holder of Stock Election Shares will be entitled to receive the Stock Consideration only with respect to that number of Stock Election Shares held by such holder (rounded to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 nearest whole share) equal to the contraryproduct obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the Exchange Agent maynumerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the written agreement remaining number of BEPC and Acquisition Subsuch holder's Stock Election Shares being converted into the right to receive the Cash Consideration.
3.2.5. If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the "Shortfall Number"), make any rules or procedures as are consistent with this Section 4.02 for then all Stock Election Shares shall be converted into the implementation of Elections right to receive the Stock Consideration and the revocation of Elections as Non-Election Shares and Cash Election Shares shall be necessary treated in the following manner:
(A) if the Shortfall Number is less than or desirable equal to administer the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such Electionsholder (rounded to the nearest whole share) equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder's Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration, and each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares held by such holder (rounded to the nearest whole share) equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder's Cash Election Shares being converted into the right to receive the Cash Consideration.
Appears in 1 contract
Sources: Merger Agreement (First Federal Financial Services Inc)
Election Procedures. (a1) An Synovus will use its commercially reasonable efforts to cause Mellon Investor Services LLC ("Exchange Agent") to mail an election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC Synovus and Acquisition Sub United shall reasonably specify and as shall be reasonably acceptable mutually agree ("Election Form") at least 20 days prior to the Company date of the United Shareholders' meeting called to approve the Merger (the “Election Form”"United Shareholders' Meeting") or on such other date as Synovus and United shall be mailed mutually agree ("Mailing Date") to holders of Company Common Stock each holder of record of United Capital Stock as of the record date for the Company Shareholders MeetingUnited Shareholders' Meeting and to each person entitled to receive Incentive Shares. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit the a holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline United Stock to elect to receive: (an “Election”i) the Per Share Stock Consideration ("Stock Election Shares"); (ii) the Per Share Cash Consideration ("Cash Election Shares"); (iii) a Per Share Combo Consideration ("Combo Election Shares); or to receive shares of New York Company Class C Common make no election with respect to such holder's United Stock (and, upon completion of the Parent Exchange, Parent LP Units"No Election Shares").
(2) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares Any United Stock with respect to which the holder (or the beneficial owner, as the case may be) shall not have submitted to the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, p.m. Eastern Time on the business day immediately preceding the date of the Company Shareholders United Shareholders' Meeting (or such other time and date as Synovus and United may mutually agree) (the “"Election Deadline”") shall be deemed not to have made an Electionbe "No Election Shares.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) " Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares United Stock represented by such Election Form shall be deemed become No Election Shares. Subject to have made no Election, unless a subsequent Election is submitted by the holder terms of such Eligible Company Shares in accordance with the procedures set forth in this Agreement and of the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither Synovus nor the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything .
(3) Within ten business days after the Election Deadline, unless the Effective Date has not yet occurred, in this Section 4.02 which case as soon thereafter as practicable, Synovus shall use commercially reasonable efforts to the contrary, cause the Exchange Agent may, to effect the allocation among the holders of United Stock in accordance with the written agreement Election Forms as follows:
(i) If the aggregate cash amount that would be paid upon the conversion in the Merger of BEPC (a) the Cash Election Shares and Acquisition Sub, make any rules (b) the Combo Election Shares would exceed the Total Cash Consideration then:
(a) all Stock Election Shares and No Election Shares shall be converted into the right to receive the Per Share Stock Consideration;
(b) the number of Cash Election Shares and the Per Share Cash Consideration portion of the Combo Election Shares shall be automatically reduced on a pro rata basis to that number of shares (converting the Per Share Cash Consideration portion of the Combo Election Shares into the number of shares to which such consideration would apply) such that the aggregate cash amount that will be paid in the Merger equals as closely as possible the Total Cash Consideration;
(c) the Cash Election Shares and the portion of the Combo Shares represented by the amount elected to be received as Per Share Cash Consideration remaining after adjustment pursuant to subsection (i)(b) above shall be converted into the right to receive the Per Share Cash Consideration; and
(d) the United Stock that would have been Cash Election Shares or procedures as are consistent with this Section 4.02 the Per Share Cash Election portion of the Combo Election Shares but for the implementation adjustment pursuant to subsection (i)(b) above shall be converted into the right to receive the Per Share Stock Consideration.
(ii) If the aggregate number of Elections shares of Synovus Common Stock to be issued upon the conversion in the Merger of (a) the Stock Election Shares and (b) the Combo Election Shares would exceed the Total Stock Consideration then:
(a) all Cash Election Shares and No Election Shares shall be converted into the right to receive the Per Share Cash Consideration;
(b) the number of Stock Election Shares and the revocation Per Share Stock Consideration portion of Elections as the Stock Election Shares shall be necessary automatically reduced on a pro rata basis to that number of shares (converting the Per Share Stock Consideration Portion of the Combo Election Shares into the number of shares to which such consideration would apply) such that the aggregate number of shares of Synovus Common Stock to be issued in connection with the Merger equals as closely as possible the Total Stock Consideration;
(c) the Stock Election Shares and the portion of the Combo Shares represented by the amount elected to be received as Per Share Stock Consideration remaining after adjustment pursuant to subsection (ii)(b) above shall be converted into the right to receive the Per Share Stock Consideration; and
(d) the United Stock that would have been Stock Election Shares or desirable the Per Share Stock Consideration portion of the Combo Election Shares but for the adjustment pursuant to administer such Electionssubsection (ii)(b) above shall be converted into the right to receive the Per Share Cash Consideration.
Appears in 1 contract
Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which EQ Shareowner Services shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form serve as BEPC and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company exchange agent (the “Election FormExchange Agent”) shall be mailed to holders of Company Common Stock of record as for the payment and exchange of the record date for the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”Merger Consideration.
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) Holders of record of Eligible Company Shares PCB Common Stock have the right submit an Election Form (defined below) specifying the number of shares of PCB Common Stock, if any, held by such Holder that such Holder desires to have converted into the right to receive BFC Common Stock (a “Stock Election”) and the number of shares of PCB Common Stock that the Holder desires to have converted into the right to receive the Per Share Amount in cash (a “Cash Election”).
(c) An election form (“Election Form”), together with a Letter of Transmittal (as of immediately defined in Section 2.08), shall be mailed no less than twenty (20) Business Days prior to the Election Deadline to elect (an as defined below) or on such earlier date as BFC and PCB shall mutually agree (the “ElectionMailing Date”) to receive each Holder of record of PCB Common Stock as of five (5) Business Days prior to the Mailing Date. Holders of record of shares of New York Company Class C PCB Common Stock who hold such shares as nominees, trustees or in other representative capacities (anda “Representative”) may submit multiple Election Forms, upon completion provided that each such Election Form covers all the shares of PCB Common Stock held by each Representative for a particular beneficial owner. Any shares owned by a Holder who has not, as of the Parent ExchangeElection Deadline, Parent LP Units) for all of the Eligible Company Shares held made an election by such holder. The holders of any Eligible Company Shares with respect submission to which the Exchange Agent has not received of an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub Non-Election Shares. BFC shall make available one or more Election Forms as may reasonably be requested in writing from time to time by all persons Persons who become holders (or beneficial owners) of Eligible Company Shares PCB Common Stock between the record date for the Company Shareholders Meeting initial mailing of Election Forms and the close of business on the business day Business Day prior to the Election Deadline, and the Company PCB shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any The term “Election Form may be revoked Deadline”, as used below, shall mean 5:00 p.m., Eastern time, on the later of (i) the date of the PCB Meeting and (ii) the date that BFC and PCB shall agree is as near as practicable to five (5) Business Days prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth thereinexpected Closing Date. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election An election shall have been properly made only if (i) the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline accompanied by one or more Certificates (iior customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all the shares of PCB Common Stock covered by such Election has been made Form. Any Election Form may be revoked or changed by the Person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice of revocation or change is actually received by the Exchange Agent at or prior to the Election Deadline pursuant Deadline. Shares of PCB Common Stock held by holders who acquired such shares subsequent to the procedures set forth Election Deadline will be designated Non-Election Shares. In addition, if a Holder of PCB Common Stock either (1) does not submit a properly completed Election Form in a timely fashion or (2) revokes its Election Form prior to the Election Deadline and fails to file a new properly completed Election Form before the deadline, such shares shall be designated Non-Election Shares. Subject to the terms of this Agreement and of the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have discretion to determine whether any election, revocation or not an Election shall have change has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub or Neither BFC nor the Exchange Agent shall be under any obligation to notify any person Person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
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Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing shares of Company Common Stock or Company OpCo Units, as applicable, shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) in such form as BEPC and Acquisition Sub the Company shall reasonably specify and as shall be reasonably acceptable to the Company Parent (the “Election Form”) shall be mailed no less than 30 days prior to holders the anticipated Closing Date or on such other date as Parent and the Company shall mutually agree (the “Mailing Date”) to each holder of record of Company Common Stock of record and Company OpCo Units as of the record close of business on the third business day prior to the Mailing Date or such other date for as mutually agreed to by Parent and the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions), other than any holder of Dissenting Shares, to specify (i) the number of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York such holder’s Company Class C A Common Stock or Company OpCo Stapled Units, as applicable, with respect to which such holder makes a Mixed Election; (and, upon completion ii) the number of the Parent Exchange, Parent LP Units) for all shares of the Eligible Company Shares held by such holder’s Company Class A Common Stock or Company OpCo Stapled Units, as applicable, with respect to which such holder makes a Cash Election; and (iii) the number of shares of such holder’s Company Class A Common Stock or Company OpCo Stapled Units, as applicable, with respect to which such holder makes a Common Unit Election. The holders Any shares of any Eligible Company Shares Class A Common Stock or Company OpCo Stapled Units with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the fifth business day immediately preceding prior to the anticipated Closing Date (or such other time and date of as Parent and the Company Shareholders Meeting shall agree) (the “Election Deadline”) (other than Cancelled Shares and Subsidiary Shares or any shares of Company Common Stock that 12 constitute Dissenting Shares at such time) shall be deemed not to be “No Election Securities,” and the holders of such No Election Securities shall be deemed to have made an Electiona Common Unit Election with respect to such No Election Securities. Parent and the Company shall publicly announce the anticipated Election Deadline at least five business days prior to the Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Deadline.
(c) BEPC and Acquisition Sub The Company shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares Class A Common Stock or Company OpCo Stapled Units between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company Parties shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any election made pursuant to this Section 2.7 shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. After a Mixed Election, Cash Election or a Common Unit Election is validly made with respect to any shares of Company Class A Common Stock or Company OpCo Stapled Units, any subsequent transfer of such shares of Company Class A Common Stock or Company OpCo Stapled Units, as applicable, shall (1) prior to the Election Deadline, automatically revoke such election or (2) following the Election Deadline, not change the election made with respect to such shares of Company Class A Common Stock or Company OpCo Stapled Units as of the Election Deadline. Any Election Form may be revoked or changed by the person submitting such Election Form, by written notice received by the Exchange Agent prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline, the holder shares of Eligible Company Shares Class A Common Stock and Company OpCo Stapled Units represented by such Election Form shall be deemed become No Election Securities, except to have made no Election, unless the extent a subsequent Election election is submitted by the holder properly made with respect to any or all of such Eligible shares of Company Shares in accordance with the procedures set forth in the Election Form Class A Common Stock or Company OpCo Stapled Units, as applicable, prior to the Election Deadline.
(e) Any . Subject to the terms of this Agreement and of the Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good-faith decisions of the Exchange Agent regarding such matters shall be binding and conclusive. None of Parent, BEPC, Acquisition Sub the Company or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
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Election Procedures. (a) An election form and other appropriate and customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of such Eligible Certificates certificates to the Exchange Agent) in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company shall mutually agree (the “"Election Form”") shall be mailed thirty-five days prior to holders the anticipated Effective Date or on such other date as the Company and Parent shall mutually agree (the "Mailing Date") to each holder of record of Company Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as “Eligible Company Shares”the Mailing Date (the "Election Form Record Date").
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares (i) the Per Share Stock Consideration in respect of New York all of such holder's Company Class C Common Stock (and"Stock Election Shares"), upon completion (ii) the Per Share Cash Consideration in respect of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder's Company Common Stock ("Cash Election Shares"), (iii) the Per Share Stock Consideration in respect of that portion of such holder's shares of Company Common Stock equal to the Stock Percentage (as defined below), rounded to the nearest whole share (the "Mixed Stock Shares"), and the Per Share Cash Consideration in respect of that portion of such holder's shares of Company Common Stock equal to the Cash Percentage (as defined below), rounded to the nearest whole share (the "Mixed Cash Shares," and together with the Mixed Stock Shares, the "Mixed Election Shares"), or to make no election with respect to such holder's Company Common Stock ("No Election Shares"). The holders of any Eligible Any Company Shares Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business 33rd day immediately preceding following the Mailing Date (or such other time and date of as Parent and the Company Shareholders Meeting may mutually agree) (the “"Election Deadline”") shall also be deemed not to have made an Electionbe "No Election Shares.
" "Cash Percentage" shall mean the quotient, rounded to the nearest thousandth, obtained by dividing (cA) BEPC and Acquisition Sub shall make available one or more Election Forms the quotient obtained by dividing the Total Cash Amount by the Per Share Consideration, by (B) the total number of shares of Company Common Stock outstanding as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares between the record date for the Company Shareholders Meeting and the close of business on the business day prior Determination Date. "Stock Percentage" shall mean the amount equal to one (1) minus the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified hereinCash Percentage.
(d) Any Election Form may be revoked prior to the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have received a properly completed Election Form by the Election Deadline or (ii) such Election has been made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed Election Form. None of Parent, BEPC, Acquisition Sub or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed Election Form. Notwithstanding anything in this Section 4.02 to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.
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Election Procedures. (a) An election form in such form as TSFG and other appropriate and customary PFC shall mutually agree (the “Election Form”) shall be mailed concurrent with the Proxy Statement/Prospectus. Customary transmittal materials (which shall specify that delivery shall be effected, and risk of loss and title to Eligible Certificates the certificates theretofore representing shares of PFC Common Stock shall pass, only upon proper delivery of such Eligible Certificates certificates to the Exchange Agent) in such form as BEPC TSFG and Acquisition Sub PFC shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the “Election FormTransmittal Materials”) shall be mailed at least 35 days prior to holders the Election Deadline (as defined below) or on such other date as PFC and TSFG shall mutually agree (the “Mailing Date”) to each holder of Company record of PFC Common Stock of record as of the record date for close of business on the Company Shareholders Meeting. As used herein, shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred fifth business day prior to as the Mailing Date (the “Eligible Company SharesElection Form Record Date”).
(b) Each Election Form shall permit the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares (i) the Per Share Stock Consideration in respect of New York Company Class C all of such holder's PFC Common Stock (and“Stock Election Shares”), upon completion (ii) the Per Share Cash Consideration in respect of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder's PFC Common Stock (“Cash Election Shares”), (iii) the Per Share Stock Consideration in respect of that portion of such holder's shares of PFC Common Stock equal to the Stock Percentage, rounded to the nearest whole share (the “Mixed Stock Shares”), and the Per Share Cash Consideration in respect of that portion of such holder's shares of PFC Common Stock equal to the Cash Percentage, rounded to the nearest whole share (the “Mixed Cash Shares,” and together with the Mixed Stock Shares, the “Mixed Election Shares”), or (iv) to make no election with respect to such holder's PFC Common Stock (“No Election Shares”). The holders of any Eligible Company Shares Any PFC Common Stock with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the Election Deadline shall also be deemed to be “No Election Shares”. The “Election Deadline”) ” shall be deemed not 5:00 p.m. on the first business day following the date on which the PFC stockholder meeting at which this Agreement will be considered is called to have made an Electionoccur (or such other date as TSFG and PFC may mutually agree).
(c) BEPC and Acquisition Sub TSFG shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares PFC Common Stock between the record date for the Company Shareholders Meeting Election Form Record Date and the close of business on the business day prior to the Election Deadline, and the Company PFC shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein.
(d) Any such election shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form shall be deemed properly completed only if accompanied by one or more certificates (or customary affidavits and indemnification regarding the loss or destruction of such certificates or the guaranteed delivery of such certificates) representing all shares of PFC Common Stock covered by such Election Form, together with duly executed transmittal materials included in the Election Form. Any Election Form may be revoked or changed by the person submitting such Election Form at or prior to the Election Deadline with respect to Deadline. In the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If event an Election Form is revoked prior to the Election Deadline and a replacement Election Form as to the applicable PFC Common Stock is not submitted prior to the Election Deadline, the holder shares of Eligible Company Shares PFC Common Stock represented by such Election Form shall become No Election Shares and TSFG shall cause the certificates representing PFC Common Stock to be deemed promptly returned without charge to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in Person submitting the Election Form prior upon written request to that effect from the holder who submitted the Election Form. Subject to the terms of this Agreement and of the Election Deadline.
(e) Any Election shall have been properly made only if (i) Form, the Exchange Agent shall have received a properly completed Election Form by the Election Deadline reasonable discretion to determine whether any election, revocation or (ii) such Election change has been properly or timely made at or prior to the Election Deadline pursuant to the procedures set forth in the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as to whether or not an Election shall have been properly made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed the Election FormForms, and any good faith decisions of TSFG regarding such matters shall be binding and conclusive. None of ParentPFC, BEPC, Acquisition Sub TSFG or the Exchange Agent shall be under any obligation to notify any person of any defect in a completed an Election Form. Notwithstanding anything .
(e) Within ten business days after the Election Deadline, unless the Effective Time has not yet occurred, in this Section 4.02 to the contrarywhich case as soon thereafter as practicable, TSFG shall cause the Exchange Agent may, to effect the allocation among the holders of PFC Common Stock of rights to receive TSFG Common Stock or cash in the Merger in accordance with the written agreement of BEPC and Acquisition Sub, make any rules or procedures Election Forms as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Elections.follows:
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Election Procedures. (a) An Subject to the proration and redesignation procedures set forth in Section 1.8, each holder of record of shares of Company Common Stock (other than Excluded Shares and Dissenting Shares) will be entitled to elect to receive for each such share the Cash Consideration and/or the Parent Stock Consideration. All such elections shall be made on an election form and other appropriate and customary letter of transmittal materials (which shall specify designed for that delivery shall be effected, and risk of loss and title to Eligible Certificates shall pass, only upon proper delivery of such Eligible Certificates to the Exchange Agent) purpose in such form as BEPC Parent and Acquisition Sub shall reasonably specify and as shall be reasonably acceptable to the Company mutually agree (the collectively, an “Election Form”) shall be mailed to holders ). Holders of record of shares of Company Common Stock who hold such shares as nominees, trustees or in other representative capacities (“Share Representatives”) may submit multiple Election Forms, provided that such Share Representative certifies that each such Election Form covers all the shares of Company Common Stock held by each such Share Representative for a particular beneficial owner.
(b) Subject to adjustment in accordance with Section 1.7(d), the number of shares of Company Common Stock (other than Excluded Shares) plus the number of Equity Award Equivalent Shares (such number, the “Fully Diluted Stock Amount”) to be converted into the right to receive Cash Consideration for such shares shall be a number equal to 32.5% of the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares) (the “Maximum Cash Election Number”).
(c) Subject to adjustment in accordance with Section 1.7(d), the number of shares of Company Common Stock (other than Excluded Shares) to be converted into the right to receive Parent Stock Consideration for such shares shall be a number equal to 67.5% of the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares) (the “Maximum Stock Election Number”).
(d) Notwithstanding the provisions of Section 1.7(b) with regard to the Maximum Cash Election Number or Section 1.7(c) with regard to the Maximum Stock Election Number, if the number of Stock Electing Shares is (i) greater than the Maximum Stock Election Number set forth in Section 1.7(c) and (ii) equal to or less than a number equal to 81% of the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares) (the “Stock Election Cap Number”, and any such number between the Maximum Stock Election Number set forth in Section 1.7(c) and up to the Stock Election Cap Number, the “Overage Stock Election Number”), then, for all purposes of this Agreement, the “Maximum Stock Election Number” shall be increased to be a number equal to such Overage Stock Election Number, and the “Maximum Cash Election Number” shall be reduced to be a number equal to the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares) minus the Overage Stock Election Number; provided, for the avoidance of doubt, (x) the Overage Stock Election Number cannot be greater than a number equal to 81% of the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares) even if the number of Stock Electing Shares is greater than the Stock Election Cap Number, (y) the Maximum Stock Election Number cannot be less than a number equal to 67.5% of the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares), and (z) the Maximum Cash Election Number cannot be greater than a number equal to 32.5% of the Fully Diluted Stock Amount outstanding immediately prior to the Effective Time (excluding Dissenting Shares).
(e) The Election Form shall be mailed with the Proxy Statement to all holders of record of shares of Company Common Stock as of the record date for of the Company Shareholders Stockholders Meeting. As used hereinThereafter, the Company and Parent shall each use its reasonable and diligent efforts to mail or make available the Election Form to all persons who become holders of shares of Company Common Stock issued and outstanding and not held by any Parent Stockholder shall be referred to as “Eligible Company Shares”.
(b) Each Election Form shall permit during the holder (or the beneficial owner through appropriate and customary documentation and instructions) of record of Eligible Company Shares as of immediately prior to the Election Deadline to elect (an “Election”) to receive shares of New York Company Class C Common Stock (and, upon completion of the Parent Exchange, Parent LP Units) for all of the Eligible Company Shares held by such holder. The holders of any Eligible Company Shares with respect to which the Exchange Agent has not received an effective, properly completed Election Form on or before 5:00 p.m., New York time, on the business day immediately preceding the date of the Company Shareholders Meeting (the “Election Deadline”) shall be deemed not to have made an Election.
(c) BEPC and Acquisition Sub shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders (or beneficial owners) of Eligible Company Shares period between the record date for the Company Shareholders Stockholders Meeting and the close of business on the business day prior to the Election Deadline, and the Company Parent shall provide to Computershare Trust Company, N.A., Parent’s exchange agent (the “Exchange Agent Agent”) with all information reasonably necessary for it to perform as specified herein.
. To be effective, an Election Form must be properly completed and received by the Exchange Agent on or before 5:00 p.m., Chicago Time, on the fifth Business Day prior to the Effective Time (d) the “Election Deadline”). Any Election Form may be revoked prior to or modified by the Election Deadline with respect to the Eligible Company Shares subject thereto in accordance with the procedures set forth therein. If an Election Form is revoked prior to the Election Deadline, the holder of Eligible Company Shares represented by person submitting such Election Form shall be deemed to have made no Election, unless a subsequent Election is submitted by the holder of such Eligible Company Shares in accordance with the procedures set forth in the Election Form prior to the Election Deadline.
(e) Any Election shall have been properly made only if (i) the Exchange Agent shall have by written notice to the Exchange Agent only if such notice of revocation or modification is actually received a properly completed Election Form by the Election Deadline or (ii) such Election has been made Exchange Agent at or prior to the Election Deadline pursuant Deadline. Subject to the procedures set forth in terms of this Agreement and the Election Form. After an Election is validly made with respect to any Eligible Company Shares, no further registration of transfers of such Eligible Company Shares shall be made on the transfer books of the Company unless and until such Election is properly revoked in accordance with the procedures set forth in the Election Form. In the event any Election is made by a beneficial owner of Eligible Company Shares, such Election shall be deemed automatically revoked in the event of any transfer of such beneficial ownership.
(f) The reasonable good faith determination of the Exchange Agent shall be conclusive and binding as have reasonable discretion to determine whether any election, revocation or not an Election shall have modification has been properly or timely made or revoked pursuant to the Election Form, as to when Elections and revocations of Elections were received by the Exchange Agent and as to whether to disregard immaterial defects in a completed any Election Form. None , and any good faith decisions of Parent, BEPC, Acquisition Sub or the Exchange Agent regarding such matters shall be under any obligation to notify any person of any defect in a completed Election Formbinding and conclusive. Notwithstanding anything As used in this Section 4.02 Agreement, “Business Day” means any day except Saturday, Sunday and any day on which banks in Mattoon, Illinois, or Decatur, Illinois, are authorized or required by law or other government action to the contrary, the Exchange Agent may, with the written agreement of BEPC and Acquisition Sub, make any rules or procedures as are consistent with this Section 4.02 for the implementation of Elections and the revocation of Elections as shall be necessary or desirable to administer such Electionsclose.
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Sources: Merger Agreement (First Mid Illinois Bancshares Inc)