Common use of Exchange Mechanics Clause in Contracts

Exchange Mechanics. (a) The Securityholder Representative shall act as paying agent in effecting the exchange of cash for certificates and/or agreements which represented shares of Common Stock or Preferred Stock (each, a “Certificate”). As soon as practicable following the execution and delivery of this Agreement, the Company shall prepare and mail, or cause the Securityholder Representative to prepare and mail, a letter of transmittal substantially in the form of Exhibit C attached hereto (a “Letter of Transmittal”) to each (i) holder of shares of Common Stock and Preferred Stock (other than any holder of Cancelled Shares) (each, a “Stockholder”) and (ii) Non-Employee Optionholder. (b) On or promptly following the Closing Date, the Securityholder Representative shall pay (from the funds deposited with the Securityholder Representative pursuant to Section 3.02(a)) each Stockholder and Non-Employee Optionholder who has (i) duly executed and completed a Letter of Transmittal and (ii) surrendered his, her or its Certificate(s) (if applicable), the amount of cash to which he, she or it is entitled under Section 2.02 and Section 2.03, as applicable. Surrendered Certificates shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate shall represent from and after the Effective Time solely the right to receive the applicable portion of Aggregate Merger Consideration pursuant to Section 2.02 and Section 2.03, as applicable. The amount of payable to each Stockholder and Non-Employee Optionholder in accordance with this Agreement shall be made by wire transfer of immediately available funds to an account designated in writing by such Stockholder and Non-Employee Optionholder in the Letter of Transmittal. Each such Stockholder and Non-Employee Optionholder that makes the deliveries to the Securityholder Representative required by this Agreement at least two (2) Business Days prior to the Closing Date will be paid his, her or its applicable portion of the Closing Residual Cash Consideration on the Closing Date. Each such Stockholder and Non-Employee Optionholder that makes the deliveries to the Securityholder Representative required by this Agreement thereafter will be paid his, her or its applicable portion of the Closing Residual Cash Consideration as soon as possible after delivery thereof is made (but in any event no later than two (2) Business Days after the date such delivery thereof is made). (c) Notwithstanding the foregoing, if any Certificate shall have been lost, stolen or destroyed, then, upon the execution and delivery, along with a Letter of Transmittal, of a customary affidavit of such fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Securityholder Representative will issue, in exchange for such Certificate, the applicable portion of Aggregate Merger Consideration to be paid in respect of the shares of Common Stock or Preferred Stock represented by such Certificate, as contemplated by this Section 2.04; provided that in no event shall any such Person be required to post a bond, collateral or other instrument or provide any indemnity in respect thereof. After the Closing Date, there will be no transfers on the share transfer books of the Surviving Corporation of shares of Common Stock or Preferred Stock that were outstanding immediately prior to the Closing Date. With respect to each Stockholder and Non-Employee Optionholder who shall not have delivered a Certificate (if applicable) and duly executed Letter of Transmittal to the Securityholder Representative, on or prior to the Closing Date, then, promptly (but in no event later than three (3) Business Days) following such Stockholder’s or Non-Employee Optionholder’s delivery to the Securityholder Representative of such required documents, Parent shall pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such shares of Common Stock, Preferred Stock or Options held by a Non-Employee Optionholder pursuant to this Agreement had such Certificate and Letter of Transmittal been delivered on or prior to the Closing Date. No interest will be paid or will accrue on the applicable portion of Aggregate Merger Consideration payable upon surrender of any Certificate. All cash paid upon the surrender of Certificates (or an affidavit of lost, stolen or destroyed certificate in lieu thereof) in accordance with the terms of this Section 2.04 will be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Common Stock or Preferred Stock previously represented by such Certificates. At the Effective Time, by virtue of the Merger and without any further action on the part of the Stockholders, Parent, the Company or Merger Sub, the shares of Common Stock and Preferred Stock shall be cancelled and extinguished, and each Certificate shall represent only the right to receive the applicable cash consideration provided herein. No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate(s) representing shares of Common Stock or Preferred Stock, including Dissenting Shares. None of the Securityholder Representative, Parent, Merger Sub or the Company will be liable to any Person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

Exchange Mechanics. (a) The Securityholder Representative Promptly following the Effective Time, but in no event later than one (1) Business Day thereafter, Parent shall act as paying agent in effecting deposit the exchange of cash for certificates and/or agreements which represented shares of Common Stock or Preferred Stock Escrow Amount and the WC Escrow Amount to the Escrow Agent. (each, a “Certificate”). b) As soon as commercially practicable following (but not more than ten (10) Business Days) after the execution and delivery of this Agreementdate hereof, the Company shall prepare and mail, mail or cause the Securityholder Representative otherwise deliver to prepare and mail, each Company Stockholder a letter of transmittal in substantially in the form of Exhibit C attached hereto as Exhibit G (each, a “Letter of Transmittal”) to each (i) holder the address set forth opposite such holder’s name on the Spreadsheet. After receipt of shares of Common Stock and Preferred Stock (other than any holder of Cancelled Shares) (each, a “Stockholder”) and (ii) Non-Employee Optionholder. (b) On or promptly following the Closing Date, the Securityholder Representative shall pay (from the funds deposited with the Securityholder Representative pursuant to Section 3.02(a)) each Stockholder and Non-Employee Optionholder who has (i) duly executed and completed a such Letter of Transmittal and any other documents (including a Certification Form pursuant to Section 2.6(a)) that Parent may reasonably require in order to effect the exchange (the “Exchange Documents”), such Company Stockholder shall surrender the certificates representing his, her or its shares of the Company Capital Stock (the “Company Stock Certificates”) to the Company (or Parent following the Closing) for cancellation at the Effective Time together with duly completed and validly executed Exchange Documents. Within the later to occur of (i) five (5) Business Days of the receipt of the Company Stock Certificates and Exchange Documents by Parent or (ii) one (1) Business Day following the Effective Time, Parent shall deliver to the holder of such Company Stock Certificates or Phantom Share Equivalents, (I) if such holder is an Accredited Investor, in exchange therefor the Per Common Share Consideration in respect of such share of Company Capital Stock or the Accredited Per Phantom Share Consideration in respect of such Qualifying Phantom Share Equivalent, or (II) if such holder is a Non-Accredited Investor, in exchange therefor the Non-Accredited Per Common Share Consideration in respect of each share of Company Capital Stock or such Non-Qualifying Phantom Share Equivalent so surrendered for cancellation by such holder, in each case excluding the amounts to be withheld and contributed to the Escrow Fund and the WC Escrow Fund in accordance with Section 2.6. The Company Stock Certificates so surrendered shall be canceled. Until so surrendered, after the Effective Time, subject to appraisal rights under the CGCL, each Company Stock Certificate will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the consideration provided for in this Article II. No portion of the Per Common Share Consideration, Non-Accredited Per Common Share Consideration or any Additional Per Share Consideration, as the case may be, in each case excluding the amounts to be withheld and contributed to the Escrow Fund and the WC Escrow Fund in accordance with Section 2.6, shall be paid to any Company Stockholder that has not surrendered his, her or its Certificate(s) (if applicable), the amount of cash to which he, she or it is entitled under Section 2.02 and Section 2.03, as applicable. Surrendered Certificates shall forthwith be cancelled. Until so surrendered and exchanged, each such Company Stock Certificate shall represent from and after the Effective Time solely the right to receive the applicable portion of Aggregate Merger Consideration pursuant to Section 2.02 and Section 2.03, as applicable. The amount of payable to each Stockholder and Non-Employee Optionholder in accordance with this Agreement shall be made by wire transfer of immediately available funds to an account designated in writing by such Stockholder and Non-Employee Optionholder in the Letter of Transmittal. Each such Stockholder and Non-Employee Optionholder that makes the deliveries to the Securityholder Representative required by this Agreement at least two (2) Business Days prior to the Closing Date will be paid his, her or its applicable portion of the Closing Residual Cash Consideration on the Closing Date. Each such Stockholder and Non-Employee Optionholder that makes the deliveries to the Securityholder Representative required by this Agreement thereafter will be paid his, her or its applicable portion of the Closing Residual Cash Consideration as soon as possible after delivery thereof is made (but in any event no later than two (2) Business Days after the date such delivery thereof is made). (c) Notwithstanding the foregoing, if any Certificate shall have been lost, stolen or destroyed, then, upon the execution and delivery, along with a Letter of Transmittal, of a customary affidavit of such fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Securityholder Representative will issue, in exchange for such Certificate, the applicable portion of Aggregate Merger Consideration to be paid in respect of the shares of Common Stock or Preferred Stock represented by such Certificate, as contemplated by this Section 2.04; provided that in no event shall any such Person be required to post a bond, collateral or other instrument or provide any indemnity in respect thereof. After the Closing Date, there will be no transfers on the share transfer books of the Surviving Corporation of shares of Common Stock or Preferred Stock that were outstanding immediately prior to the Closing Date. With respect to each Stockholder and Non-Employee Optionholder who shall not have delivered a Certificate (if applicable) and duly executed Letter of Transmittal to the Securityholder Representative, on or prior to the Closing Date, then, promptly (but in no event later than three (3) Business Days) following such Stockholder’s or Non-Employee Optionholder’s delivery to the Securityholder Representative of such required documents, Parent shall pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such shares of Common Stock, Preferred Stock or Options held by a Non-Employee Optionholder pursuant to this Agreement had such Certificate and Letter of Transmittal been delivered on or prior to the Closing Date. No interest will be paid or will accrue on the applicable portion of Aggregate Merger Consideration payable upon surrender of any Certificate. All cash paid upon the surrender of Certificates (or an affidavit of lost, stolen or destroyed certificate in lieu thereof) in accordance with the terms of this Section 2.04 will be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Common Stock or Preferred Stock previously represented by such Certificates. At the Effective Time, by virtue of the Merger and without any further action on the part of the Stockholders, Parent, the Company or Merger Sub, the shares of Common Stock and Preferred Stock shall be cancelled and extinguished, and each Certificate shall represent only the right to receive the applicable cash consideration provided herein. No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date after the Effective Time shall be paid to until the holder of any unsurrendered Certificate(s) representing shares record of Common such Company Stock or Preferred Stock, including Dissenting Shares. None of Certificate shall surrender such Company Stock Certificate and the Securityholder Representative, Parent, Merger Sub or the Company will be liable to any Person in respect of any cash delivered to a public official Exchange Documents pursuant to any applicable abandoned property, escheat or similar Lawhereto.