Common use of Exchange of Certificates and Payment Clause in Contracts

Exchange of Certificates and Payment. (a) Prior to the Effective Time, the Parent and the Company shall appoint a mutually acceptable agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of the Parent Capital Stock or (ii) uncertificated shares of the Parent Capital Stock (the “Uncertificated Shares”). The Company shall (x) deposit with the Exchange Agent, to be held in trust for the holders of the Parent Capital Stock, certificates (if such shares shall be certificated) representing shares of Company Stock issuable pursuant to Section 2.1 in exchange for outstanding shares of the Parent Capital Stock and (y) make available to the Exchange Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.4 and any dividends or other distributions pursuant to Section 2.2(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, the Company shall send, or shall cause the Exchange Agent to send, to each holder of shares of the Parent Capital Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. (b) Each holder of shares of the Parent Capital Stock shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that such holder has a right to receive pursuant to Section 2.1. The shares of Company Stock constituting part of such Merger Consideration, at the Company’s option but subject to the written consent of the Parent (which consent shall not be unreasonably withheld or delayed), shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of the Parent Capital Stock or is otherwise required under Applicable Law. As a result of the Merger, at the Effective Time, all shares of the Parent Capital Stock shall cease to be outstanding and each holder thereof shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration payable in respect thereof and any dividends or other distributions payable in respect thereof in accordance with Section 2.2(f). (c) If any portion of the Merger Consideration is to be paid to a Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. (d) At the Effective Time, there shall be no further registration of transfers of shares of the Parent Capital Stock that were outstanding prior to the Merger. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration payable in respect thereof provided for, and in accordance with the procedures set forth, in this Article II. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.2(a) that remains unclaimed by the holders of shares of the Parent Capital Stock six months after the Effective Time shall be returned to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of the Parent Capital Stock for the Merger Consideration in accordance with this Section 2.2 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, the Surviving Corporation shall not be liable to any holder of shares of the Parent Capital Stock for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of the Parent Capital Stock six years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto. (f) No dividends or other distributions with respect to Company Stock constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.4, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of the Company have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such person is entitled pursuant to Section 2.4 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.

Exchange of Certificates and Payment. (a) Prior to the Merger Effective Time, the Delaware Parent shall designate Continental Stock Transfer and the Trust Company shall appoint a mutually acceptable to act as exchange agent (the “Exchange Agent”) in the Merger. The Exchange Agent shall be responsible for exchanging and/or verifying the purpose cancellation of exchanging share certificates (where share certificates were issued) representing Stock in exchange for Delaware Parent Common Stock or Delaware Parent Preferred Stock, as the case may be (together referred to as “Delaware Parent Stock”). (b) At or prior to the Merger Effective Time, Delaware Parent shall deposit, or cause to be deposited, a copy of the stockholder list of the Corporation with the Exchange Agent updated to reflect, at the Merger Effective Time, the issuance of the Merger Consideration (i) certificates representing shares receivable by the Stockholders in accordance with the Final Closing Consideration Spreadsheet. The Merger Consideration shall be duly issued to the appropriate Stockholders upon the entry of the Parent Capital Stock or (ii) uncertificated shares names of the Parent Capital Stock (Stockholders on the “Uncertificated Shares”)stockholder list of the Corporation. The Company shall (x) deposit with Prior to the Merger Effective Time, and if requested by the Exchange Agent, to be held in trust for the holders of the Parent Capital Stock, certificates (if such shares shall be certificated) representing shares of Company Stock issuable pursuant to Section 2.1 in exchange for outstanding shares of the Parent Capital Stock and (y) make available to the Exchange Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.4 and any dividends or other distributions pursuant to Section 2.2(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, the Company shall send, or shall cause the Exchange Agent to send, to each holder Stockholder, a Letter of shares Transmittal for use in such exchange and/or verification, in form and substance reasonably satisfactory to Parent and the Corporation (a “Letter of the Parent Capital Stock at the Effective Time a letter of transmittal and instructions (Transmittal”) which shall specify that the delivery and/or cancellation of Corporation stock certificates (“Corporation Stock Certificates”) in respect of the portion of the Merger Consideration to be issued to each Stockholder shall be effected, and risk of loss and title shall pass, only upon proper delivery and/or cancellation of the Corporation Stock Certificates or transfer of the Uncertificated Shares and other related transmittal documents to the Exchange Agent) Agent for use in such exchange. (bc) Each Upon surrender of a Corporation Stock Certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Delaware Parent, together with a duly executed Letter of Transmittal (if required), which includes a release of certain Claims set forth therein, and such other documents (including IRS Form W-8 or W-9, as applicable) as may reasonably be required by Delaware Parent or the Exchange Agent, the holder of shares of the Parent Capital such Corporation Stock Certificate shall be entitled to receive, upon (i) surrender to receive in exchange therefor the Exchange Agent portion of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that such holder has a the right to receive pursuant to Section 2.11.7.1, if any, and the Corporation Stock Certificate so surrendered shall forthwith be canceled. The shares If any Corporation Stock Certificates shall have been lost, stolen, or destroyed, upon the making of Company Stock constituting part an affidavit of such Merger Consideration, at fact by the Company’s option but subject to the written consent of the Parent (which consent shall not be unreasonably withheld or delayed), shall be in uncertificated book-entry form, unless a physical Stockholder Claiming such certificate is requested by a holder of shares of the Parent Capital Stock or is otherwise required under Applicable Law. As a result of the Merger, at the Effective Time, all shares of the Parent Capital Stock shall cease to be outstanding and each holder thereof lost, stolen, or destroyed, in form reasonably satisfactory to Delaware Parent, the Exchange Agent shall cease to have any rights with respect theretopay in exchange for such lost, except stolen, or destroyed Corporation Stock Certificate the right to receive the Merger Consideration payable in respect thereof and any dividends or other distributions payable in respect thereof in accordance with Section 2.2(f). (c) If any portion of the Merger Consideration that such Stockholder is entitled to receive pursuant to Section 1.7.1. Delaware Parent may, in its discretion and as a condition precedent to the issuance thereof, require such Stockholder to provide Delaware Parent with an indemnity agreement, in a form reasonably satisfactory to Delaware Parent, against any Claim that may be made against Delaware Parent with respect to the Corporation Stock Certificate alleged to have been lost, stolen, or destroyed, and a surety bond, reasonably satisfactory to Delaware Parent, to secure such indemnity obligation. No interest shall accrue on the Merger Consideration. If the Merger Consideration (or any portion thereof) is to be paid delivered to a any Person other than the Person in whose name the Corporation Stock Certificate(s) surrendered Certificate or the transferred Uncertificated Share in exchange therefor is registered, it shall be a condition to such payment delivery that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment delivery shall pay to the Exchange Agent Delaware Parent any transfer or other taxes Taxes required as a result by reason of such the payment of the Merger Consideration (or any portion thereof) to a Person other than the registered holder of such Certificate the Corporation Stock Certificate(s) so surrendered, or Uncertificated Share or shall establish to the satisfaction of the Exchange Agent Delaware Parent that such tax Tax has been paid or is not payableapplicable. (d) At the Effective Time, there shall be no further registration of transfers of shares Delaware Parent’s delivery of the Parent Capital Stock that were outstanding prior Merger Consideration to the Exchange Agent and/or the Surviving Corporation in accordance with and as set forth in this Section 1.7.4 constitutes Delaware Parent’s full performance of its obligations with respect to the payment of the Merger Consideration to the Stockholders in connection with the consummation of the Merger. If, after Delaware Parent’s delivery of the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for applicable portion of the Merger Consideration payable in respect thereof provided for, and to the Exchange Agent and/or the Surviving Corporation in accordance with the procedures and as set forth, forth in this Article IISection 1.7.4 constitutes Delaware Parent’s full performance of its obligations with respect to the payment of the Merger Consideration to each Stockholder in connection with the consummation of the Merger. (e) Any portion Notwithstanding anything to the contrary contained herein, no fractional Delaware Parent Stock will be issued by virtue of the Merger Consideration made available Merger, and each Person who would otherwise be entitled to a fraction of a share of Delaware Parent Stock (after aggregating all fractional shares of Delaware Parent Stock that otherwise would be received by such holder) shall instead have the Exchange Agent pursuant to Section 2.2(a) that remains unclaimed by the holders number of shares of the Delaware Parent Capital Stock six months after the Effective Time shall be returned issued to such Person rounded down to the Surviving Corporationnearest whole share, upon demand, and any such holder who has not exchanged shares of the Parent Capital Stock for the Merger Consideration in accordance with this Section 2.2 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, the Surviving Corporation shall not be liable to any holder of shares of the Parent Capital Stock for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of the Parent Capital Stock six years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto. (f) No dividends or other distributions with respect to Company Stock constituting part of the Merger Consideration, and no cash payment in lieu of such fractional shares as provided in Section 2.4, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of the Company have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such person is entitled pursuant to Section 2.4 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesshares.

Exchange of Certificates and Payment. (a) Prior to the Effective Time, Parent shall (i) designate PNC to act as payment agent in the Parent and the Company shall appoint a mutually acceptable agent Merger (the “Exchange Payment Agent”) for and (ii) appoint the purpose Escrow Agent as escrow agent to hold the Escrow Fund in accordance with this Agreement and the Escrow Agreement. (a) As soon as reasonably practicable (but no later than the next Business Day) following the Closing, Parent shall cause (i) an amount equal to the portion of exchanging for the Merger Consideration (i) certificates representing shares of the Parent Capital Stock or (ii) uncertificated shares of the Parent Capital Stock (the “Uncertificated Shares”). The Company shall (x) deposit with the Exchange Agent, to be held in trust for the holders of the Parent Capital Stock, certificates (if such shares shall be certificated) representing shares of Company Stock issuable pursuant to Section 2.1 in exchange for outstanding shares of the Parent Capital Stock and (y) make available to the Exchange Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.4 and any dividends or other distributions pursuant to Section 2.2(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, the Company shall send, or shall cause the Exchange Agent to send, to each holder of shares of the Parent Capital Stock payable at the Effective Time a letter to the Vested Equityholders in respect of transmittal their shares of Capital Stock, Company Warrants and instructions Non-Employee Company Options (and, for the avoidance of doubt, excluding the portion of the Merger Consideration that constitutes the Escrow Amount and the Expense Fund) to be deposited with the Payment Agent for payment to the Vested Equityholders in respect of their shares of Capital Stock, Company Warrants and Non-Employee Company Options as set forth in the Spreadsheet, (ii) an amount equal to the portion of the Merger Consideration payable at the Effective Time to the Vested Equityholders in respect of their Employee Company Options and Promised Options (and, for the avoidance of doubt, excluding the portion of the Merger Consideration that constitutes the Escrow Amount and the Expense Fund) to be deposited with the Surviving Corporation or other applicable Parent Entity for payment to the Vested Equityholders in respect of their Employee Company Options and Promised Options as set forth in the Spreadsheet, (iii) the Escrow Amount to be deposited with the Escrow Agent, which shall specify that the delivery amount shall be effectedheld and disbursed by the Escrow Agent in accordance with this Agreement and the Escrow Agreement and (iv) the Expense Fund to be deposited with the Holder Representative, which amount shall be held and risk of loss disbursed by the Holder Representative in accordance with this Agreement and title shall pass, only upon proper delivery of the Certificates or transfer of engagement letter between the Uncertificated Shares to Holder Representative and the Exchange Agent) for use in such exchangeCompany. (b) Each holder As soon as reasonably practicable (but no later than the second Business Day) following the Closing, Parent shall cause the Payment Agent to provide to each Stockholder a letter of shares transmittal in the form attached hereto as Exhibit D (the “Letter of the Parent Capital Stock Transmittal”). Subject to Section 1.6.2, upon delivery of a duly executed Joinder Agreement or Letter of Transmittal (and any other documents reasonably required thereby, including applicable Tax forms), each Stockholder shall be entitled to receive, upon (i) surrender to receive in exchange therefor the Exchange Agent portion of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that such holder has a the right to receive pursuant to Section 2.1. The shares of Company Stock constituting part of such Merger Consideration, at the Company’s option but subject to the written consent of the Parent (which consent shall not be unreasonably withheld or delayed), shall be in uncertificated 1.6.1 and all book-entry form, unless a physical certificate is requested by a holder shares in respect of shares of the Parent Capital such Preferred Stock or is otherwise required under Applicable Law. As a result of the Merger, at the Effective Time, all shares of the Parent Capital Common Stock shall cease be canceled. Notwithstanding anything to be outstanding and each holder thereof shall cease to have any rights with respect theretothe contrary herein, except the right to receive the Merger Consideration payable in respect thereof and any dividends or other distributions payable in respect thereof in accordance with Section 2.2(f). (c) If any portion of the Merger Consideration payable to the Founder in respect of the Founder’s Capital Stock that is held back pursuant to the Holdback Agreement (the “Holdback Consideration”) shall not be payable by Parent or the Payment Agent at the Effective Time and shall instead be subject to the terms and conditions set forth in the Holdback Agreement as are in effect as of the Effective Time. If the Merger Consideration (or any portion thereof) is to be paid delivered to a any Person other than the Person in whose name the shares of Capital Stock surrendered Certificate or the transferred Uncertificated Share in exchange therefor is registered, it shall be a condition to such payment delivery that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment delivery shall pay to the Exchange Agent Parent any transfer or other taxes Taxes required as a result solely by reason of such the payment of the Merger Consideration (or any portion thereof) to a Person other than the registered holder of such Certificate the shares of Capital Stock so surrendered, or Uncertificated Share or shall establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not payableapplicable. (c) Subject to Section 1.6.2, upon the delivery of a duly executed Warrant Termination Agreement to the Payment Agent (and any other documents required thereby, including applicable Tax forms), each holder of a Company Warrant shall be entitled to receive in exchange therefor the portion of the Merger Consideration that such holder has the right to receive at that time pursuant to Section 1.6.1(e). (d) At Subject to Section 1.6.2, upon the Effective Timedelivery of a duly executed Option Consent to the Payment Agent (and any other documents required thereby, there including applicable Tax forms), each holder of a Non-Employee Company Option that are Vested Company Options shall be no further registration of transfers of shares of entitled to receive in exchange therefor the Parent Capital Stock that were outstanding prior to the Merger. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration payable in respect thereof provided for, and in accordance with the procedures set forth, in this Article II. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.2(a) that remains unclaimed by the holders of shares of the Parent Capital Stock six months after the Effective Time shall be returned to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of the Parent Capital Stock for the Merger Consideration in accordance with this Section 2.2 prior right to receive at that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, the Surviving Corporation shall not be liable to any holder of shares of the Parent Capital Stock for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of the Parent Capital Stock six years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto. (f) No dividends or other distributions with respect to Company Stock constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.4, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of the Company have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such person is entitled pursuant to Section 2.4 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.to