Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares. (b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10. (c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock. (d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity. (e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1. (f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares. (g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock. (h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Simplex Solutions Inc)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective TimeTime (but in no event more than five business days thereafter), the Exchange Agent Parent shall require its transfer agent to mail to each record holder of record of a certificate or certificates that immediately prior to the Effective Time effectiveness of the Parent Amended and Restated Charter represented outstanding Shares shares of Capstar Common Stock which have been reclassified, converted and exchanged pursuant to the filing of the Parent Amended and Restated Charter (the "CERTIFICATESReclassification") and whose shares were converted into the right to receive shares ), a form of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title shall pass, only upon proper delivery of certificates representing shares of Capstar Common Stock to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent transfer agent, and which shall be in such form and have such other customary provisions as Parent and the Company reasonably may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for surrendering such certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to receiving the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is shall be entitled therefor pursuant to Section 1.10(f1.9(a) as a result of the filing and effectiveness of the amount Parent Amended and Restated Charter. Pursuant to the terms of dividends the Parent Amended and Restated Charter, no certificates or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole scrip representing fractional shares of Parent Voting Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Nonvoting Common Stock and cash in lieu of fractional shares, if any, as may shall be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares certificates that were outstanding immediately prior to the Effective Time. IfReclassification represented shares of Capstar Class A Common Stock, after the Effective Time, Certificates are presented Capstar Class B Common Stock or Capstar Class C Common Stock which have been converted pursuant to the Surviving Company for Reclassification, and such fractional share interests will not entitle the owner thereof to vote or any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions rights of a share stockholder of Parent. In lieu of any such fractional shares, Parent Common Stock shall be issued in satisfy payment with respect to such fractional shares by delivering to the Merger, but in lieu thereof each holder transfer agent for distribution to the holders of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of such fractional shares reasonably promptly following the Reclassification cash (without interest) determined by multiplying in an amount equal to the Average Stock Price aggregate amount of all such fractional shares multiplied by the fractional closing price per share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying Capstar Class A Common Stock on the corporate and accounting complexities that would otherwise be caused by New York Stock Exchange on the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed trading day immediately prior to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common StockReclassification.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Chancellor Media Corp of Los Angeles), Agreement and Plan of Merger (Hicks Thomas O)
Exchange of Certificates. (a) Prior At or prior to the Effective Time, as required by subsections First Community shall (bi) authorize the issuance of and (c) below, Parent shall deliver make available to its transfer agent, or a depository bank or trust institution of recognized standing selected by Parent company reasonably acceptable to First Community and Acquisition and reasonably satisfactory the Minority Bank to the Company act as exchange agent hereunder (the "EXCHANGE AGENT") “Exchange Agent”), for the benefit of the holders of Shares Minority Bank Stock Certificates for exchange in accordance with this Article 1: (i) II, certificates representing the appropriate number of for shares of Parent First Community Common Stock issuable (the “First Community Stock Certificates”) to be issued pursuant to Section 1.82.1, to the extent First Community Common Stock is to be issued in non-book entry form, and (ii) shall deposit with the Escrow Agent sufficient cash to be paid for payment of cash in lieu of any fractional shares of Parent First Community Common Stock (such shares of Parent Common in accordance with Section 2.2. Such First Community Stock Certificates and such cash are hereinafter referred to in this Article II as the "EXCHANGE FUND"), in exchange “Conversion Fund.” First Community shall be solely responsible for outstanding Sharesthe payment of any fees and expenses of the Exchange Agent.
(b) Promptly Within ten business days after the Effective TimeClosing Date, First Community shall cause the Exchange Agent shall to mail to each holder of record of a certificate one or more certificates that immediately prior to the Effective Time represented outstanding Shares for shares of Minority Bank Common Stock (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common “Minority Bank Stock pursuant to Section 1.8: (iCertificates”) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Minority Bank Stock Certificates shall pass pass, only upon delivery of the Certificates such certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Minority Bank Stock Certificates in exchange for certificates representing shares of Parent Common Stock. pursuant to this Agreement.
(c) Upon proper surrender of a Minority Bank Stock Certificate for cancellation exchange to the Exchange Agent, together with such properly completed letter of transmittal transmittal, duly executed, the holder of such Minority Bank Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number his or her portion of whole the Merger Consideration deliverable in respect of the shares of Parent Minority Bank Common Stock and, if applicable, a check representing the cash consideration to which represented by such holder may be entitled on account of a fractional share of Parent Common Minority Bank Stock that such holder has the right to receive pursuant to the provisions of this Article 1Certificate, and the such Minority Bank Stock Certificate so surrendered shall forthwith be canceled. In No interest will be paid or accrued on the event Merger Consideration deliverable upon surrender of a transfer of ownership of Shares Minority Bank Stock Certificate.
(d) If any First Community Stock Certificate is to be issued in a name other than that in which the Minority Bank Stock Certificate surrendered in exchange therefor is not registered in the transfer records registered, it shall be a condition of the Companyissuance thereof that the Minority Bank Stock Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, a certificate representing and that the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing person requesting such Shares is presented exchange shall pay to the Exchange Agent accompanied in advance any transfer or other taxes required by all documents reason of the issuance of a First Community Stock Certificate in any name other than that of the registered holder of the Minority Bank Stock Certificate surrendered, or required for any other reason, or shall establish to evidence and effect the satisfaction of the Exchange Agent that such transfer and by evidence that any applicable tax has been paid or is not payable.
(e) After the Effective Time, there shall be no transfers on the stock transfer taxes have been paid. Until surrendered as contemplated books of the Minority Bank of the shares of Minority Bank Common Stock that were issued and outstanding immediately prior to the Effective Time.
(f) Any portion of the Conversion Fund that remains unclaimed by this Section 1.10, each Certificate shall be deemed at any time the stockholders of the Minority Bank for twelve months after the Effective Time shall be paid to represent First Community, or its successors in interest. Any stockholders of the Minority Bank who have not theretofore complied with this Article II shall thereafter look only to First Community, or its successors in interest, for the right to receive upon such surrender the certificate issuance of certificates representing shares of Parent First Community Common Stock and the payment of cash in lieu of any fractional shares and any unpaid dividends and distributions on First Community Common Stock deliverable in respect of each share of Minority Bank Common Stock such stockholder holds as determined pursuant to this Agreement. Notwithstanding the foregoing, none of First Community, the Exchange Agent or any other person shall be liable to any former holder of shares of Minority Bank Common Stock or outstanding Minority Bank equity awards, for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(g) In the event any Minority Bank Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Minority Bank Stock Certificate to be lost, stolen or destroyed and, if reasonably required by the Surviving Bank, the posting by such person of a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Minority Bank Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Minority Bank Stock Certificate, and in accordance with Article II, the Per Share Merger Consideration and cash in lieu of any fractional shares of Parent Common Stock as contemplated by deliverable in respect thereof pursuant to this Section 1.10Agreement.
(ch) No dividends or other distributions declared or made after the Effective Time with respect to Parent First Community Common Stock with a and payable to the holders of record date thereof after the Effective Time shall be paid to the holder of any unsurrendered Minority Bank Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate thereof shall surrender such CertificateMinority Bank Stock Certificate in accordance with this Article II. Subject to Promptly after the effect of applicable laws, following surrender of any such a Minority Bank Stock Certificate there shall be paid to in accordance with this Article II, the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of thereof shall be entitled to receive any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time distributions, without interest thereon, which theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender had become payable with respect to such whole shares of Parent First Community Common Stock.
(d) In Stock represented by such Minority Bank Stock Certificate. No holder of an unsurrendered Minority Bank Stock Certificate shall be entitled, until the event that any Certificate for Shares surrender of such Minority Bank Stock Certificate, to vote the shares of First Community Common Stock into which Minority Bank Common Stock shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityconverted.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (First Community Financial Partners, Inc.), Merger Agreement (First Community Financial Partners, Inc.)
Exchange of Certificates. (a) Prior Immediately prior to the First Merger Effective Time, as required by subsections (b) and (c) below, Parent NewCo shall deliver to its transfer agentdeposit, or a depository or trust institution of recognized standing cause to be deposited, with an exchange agent (the “Exchange Agent”) selected by Parent and Acquisition Monocle at least ten (10) Business Days prior to the Closing and reasonably satisfactory acceptable to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Company:
(i) evidence of NewCo Common Stock in book-entry form (and/or certificates representing such NewCo Common Stock, at NewCo’s election) representing the appropriate number of shares of Parent NewCo Common Stock issuable pursuant sufficient to Section 1.8, and deliver the NewCo Exchange Shares; and
(ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding SharesNewCo Exchange Warrants.
(b) Promptly after the Effective TimeWith respect to any holder of Monocle Common Stock or Monocle Warrants, Monocle and NewCo shall instruct the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior deliver to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock NewCo Exchange Shares or the NewCo Exchange Warrants, as applicable, to which such holder is entitled pursuant to Section 1.10(f) 2.6(a), at the First Merger Closing, and in exchange any Monocle Certificates representing outstanding Monocle Common Stock or Monocle Warrants shall be cancelled as a result of the amount of dividends or other distributions with a record date First Merger, without any further action by any party. From and after the First Merger Effective Time theretofore paid with respect Time, any Monocle Certificate(s) representing Monocle Common Stock or Monocle Warrants shall be deemed to evidence such number holder’s right to receive its respective portion of whole shares the NewCo Exchange Shares or NewCo Exchange Warrants, as applicable, into which such Monocle Common Stock or Monocle Warrants shall have been converted by the First Merger. From and after the First Merger Effective Time, all previous holders of Parent Monocle Common Stock or Monocle Warrants shall cease to have any rights as stockholders or equityholders of Monocle other than the right to receive such holder’s respective portion of the NewCo Exchange Shares or the NewCo Exchange Warrants, as applicable, into which such Monocle Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall Monocle Warrants have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required converted pursuant to this Agreement; provided, howeverwithout interest. From and after the First Merger Effective Time, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers of Monocle Common Stock or Monocle Warrants on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1Monocle.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Monocle Acquisition Corp), Merger Agreement (Monocle Acquisition Corp)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit with ChaseMellon Shareholder Services, L.L.C., or, following consultation with the Company, such other agent or a depository or trust institution of recognized standing selected agents (the "Exchange Agent") as may be appointed by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") Acquisition, for the benefit of the holders of Shares Shares, for exchange in accordance with this Article 1, through the Exchange Agent: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), ) issuable pursuant to Section 1.8 in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that which immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATESCertificates") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that Stock, which such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that which is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, thereby and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), ) until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor therefor, without interest interest, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock Stock, and (ii) at the appropriate payment date date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor therefor, upon the making of an affidavit of that fact by the holder thereof thereof, such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent Agent, may, in its discretion, require the delivery of a suitable bond or and/or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares, subject, however, to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such Shares in accordance with the terms of this Agreement or prior to the date hereof and which remain unpaid at the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Surviving Company Corporation of the Shares that which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company Corporation for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall shall, upon surrender of his or her Certificate or Certificates Certificates, be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim closing price for Parent Common Stock and cash in lieu of fractional shares, as reported on the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.New York
Appears in 2 contracts
Sources: Merger Agreement (Nichols Research Corp /Al/), Merger Agreement (Computer Sciences Corp)
Exchange of Certificates. (a) Prior American Securities Transfer & Trust, Inc. or such other reputable bank or trust company selected by Parent (and reasonably acceptable to the Company) prior to the Closing Date shall act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, (ii) the certificates representing the shares of Parent Preferred Stock issuable pursuant to this Section 1, and (iiiii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common StockStock or Parent Preferred Stock (as the case may be). Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of or Parent Common Preferred Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock or Parent Preferred Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.9(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock) or Parent Preferred Stock (and cash in lieu of any fractional share of Parent Preferred Stock), as the case may be, as contemplated by this Section 1.101. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock or Parent Preferred Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock or Parent Preferred Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment or Parent Preferred Stock which such holder has the right to receive upon surrender thereof until such holder surrenders such Company Stock Certificate in lieu of fractional shares accordance with this Section 1.9 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the date one year anniversary after the Effective Time date on which the Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.9 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and or Parent Preferred Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common or Parent Preferred Stock and any applicable dividends or distributions with respect to Parent Common Stock or Parent Preferred Stock.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock or Company Preferred Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or Company Preferred Stock or to any other Person with respect to any shares of Parent Common Stock or Parent Preferred Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Ribogene Inc / Ca/), Agreement and Plan of Reorganization (Questcor Pharmaceuticals Inc)
Exchange of Certificates. (a) Prior On the Closing Date, to the Effective Time, extent that the Company shall have delivered a written request to Parent and the relevant Company Stock Certificates have been surrendered for cancellation to Parent no later than five (5) business days prior to the Closing Date and Parent has received a letter of transmittal from the relevant holder of Company Capital Stock in customary form and containing such customary provisions (as required reasonably agreed to by subsections (b) Parent and (c) belowCompany within 10 days after the date of this Agreement), Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each such holder of record of a certificate or certificates Company Stock Certificate that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and shares of Company Capital Stock whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: 1.5(c). As soon as reasonably practicable after the Effective Time, Parent will send (or cause to be sent) to the record holders of Company Stock Certificates (other than record holders of Company Stock Certificates as to which certificates representing Parent Common Stock are delivered at Closing) (i) a letter of transmittal in customary form and containing such customary provisions as Parent or its transfer agent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Parent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Company Stock Certificate to Parent or its transfer agent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, Parent shall cause to be delivered to the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to Section 1.5(c) rounded up to the provisions of this Article 1, and the Certificate nearest whole number. All Company Stock Certificates so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.9, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the Merger Consideration in accordance with this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing shares of Parent Common Stock and or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and indemnity and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity to Parent against any fractional shares of claim that may be made against Parent Common or the Surviving Corporation with respect to such Company Stock as contemplated by this Section 1.10Certificate.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate or an appropriate affidavit and bond with respect to any lost, stolen or destroyed Company Stock Certificate, in each case in accordance with this Section 1.9 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to Section 1.10(f)this Agreement such amounts as Parent and the Surviving Corporation are required to deduct or withhold therefrom under the Code or any provision of state, until local or foreign tax law or under any other applicable Legal Requirement. To the holder extent Parent or the Surviving Corporation is deducting and withholding any such consideration based on any Legal Requirement other than any Legal Requirement under the Code, Parent or the Surviving Corporation, as applicable, shall use its commercially reasonable efforts to notify the Company of record of the amounts required to be withheld and the Legal Requirement that imposes such Certificate shall surrender such Certificate. Subject withholding obligation at least ten (10) days prior to the effect of date when the applicable laws, following surrender of any such Certificate there withholding shall be made, and in any event shall provide such notification when such withholding is made. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the record holder of the certificates Person to whom such amounts would otherwise have been paid.
(d) Each certificate representing whole shares of Parent Common Stock to be issued in exchange therefor without interest (i) accordance with this Agreement shall bear a legend substantially in the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lostfollowing form: “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, stolen or destroyedSOLD OR OTHERWISE TRANSFERRED, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityPLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH SHARES ARE REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO PARENT IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED”.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares capital stock of the Company or to any other Person for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (RHL Group, Inc.), Agreement and Plan of Merger and Reorganization (Favrille Inc)
Exchange of Certificates. (a) Prior to Promptly following the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENTExchange Agent") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, 1.8 and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), in exchange for outstanding Shares.
(b) Promptly Parent shall use commercially reasonable efforts to cause the Exchange Agent, promptly after the Effective Time (and in no event later than ten (10) business days following the Effective Time), the Exchange Agent shall to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATESCertificates") and whose shares Shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.9, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.101.9.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f1.9(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable lawsApplicable Law, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f1.9(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that If any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityindemnity reasonably satisfactory to Parent and the Exchange Agent.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c1.9(c) or 1.10(f1.9(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company Corporation for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average average of the closing sale prices for one share of Parent Common Stock Price as reported on the Nasdaq National Market for the fifteen (15) consecutive trading days ending on and including the third trading day preceding the Closing Date by the fractional share interest to which such holder would otherwise be entitledentitled (after aggregating all shares owned by such holder). The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary of the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawApplicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Kforce Inc), Merger Agreement (Hall Kinion & Associates Inc)
Exchange of Certificates. (a) As promptly as practicable after the Effective Time (but in any event within thirty (30) days following the Effective Time), Parent shall cause the shares of Parent Preferred A Stock issuable pursuant to Section 1.5(a)(i) to be issued in certificated or book-entry form at Parent’s election.
(b) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, will mail or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory otherwise provide to the Company (the "EXCHANGE AGENT") for the benefit of the Persons who were record holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Company Capital Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates book-entry or certificated shares representing shares of Parent Common Stock; provided, however, that, at the Company’s discretion, such instructions may be provided to record holders of Company Capital Stock by the Company prior to the Effective Time. Upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such letter of transmittal duly executed, other documents as may be reasonably required by Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate therefor, book-entry or certificated shares representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Series A Preferred Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5(a)(i); and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10Section, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Series A Preferred Stock pursuant to the provisions of Section 1.5(a)(i). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent Common Stock may, in its discretion and cash in lieu as a condition to the issuance of any fractional book-entry or certificated shares representing Series A Preferred Stock, require the owner of Parent Common such lost, stolen or destroyed Company Stock as contemplated by this Section 1.10Certificate to provide an appropriate lost affidavit with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Series A Preferred Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Series A Preferred Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable abandoned property, escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares Each of Parent Common Stock and cash in lieu of fractional shares, if any, the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required pursuant to be deducted or withheld from such consideration under the Code or any provision of state, local or non-U.S. Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and paid to or deposited with the appropriate Governmental Body, such amounts shall be treated for all purposes under this Agreement; provided, however, that Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Parent shall take commercially reasonable efforts to reduce or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityeliminate any required withholding.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Series A Preferred Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or other similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (iHookup Social, Inc.), Merger Agreement (iHookup Social, Inc.)
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent will cause the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock Stock) as contemplated by this Section 1.101. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon first anniversary of the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Interleaf Inc /Ma/), Merger Agreement (Broadvision Inc)
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as payment agent in the Merger (the “Payment Agent”). Immediately after the Closing but prior to the Effective Time, as required by subsections (bParent shall deposit with the Payment Agent cash sufficient to pay the cash consideration payable to Escrow Participants and former holders of In-the-Money Company Options pursuant to Sections 1.5(a)(ii)(A), 1.5(a)(iii)(A) and 1.6(a)(i), respectively (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to less the Company (the "EXCHANGE AGENT") for the benefit sum of the holders of Shares for exchange in accordance Working Capital Adjustment Escrow Contribution Amount and the Indemnity Escrow Contribution Amount). The cash amount so deposited with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter Payment Agent is referred to as the "EXCHANGE FUND")“Payment Fund.” The Payment Agent will invest the funds included in the Payment Fund in the manner directed by Parent. Any interest or other income resulting from the investment of such funds shall be the property of, in exchange for outstanding Sharesand will be paid promptly to, Parent.
(b) Promptly Upon deposit by Parent (i) with the Payment Agent of the amounts to be deposited into the Payment Fund pursuant to Section 1.10(a), (ii) with the Escrow Agent of the Indemnity Escrow Contribution Amount, (iii) with the Escrow Agent of the Working Capital Adjustment Escrow Contribution Amount and (iv) with the Stockholders’ Representative of the Stockholders’ Representative Expense Amount, Parent shall be deemed to have satisfied its obligations to make payments in respect of the Merger, other than (A) the obligation of Parent to make payments required by Sections 1.7 and 1.8 and (B) the obligation, if any, of Parent to make payments in respect of Dissenting Shares pursuant to Section 1.11 following the Effective Time.
(c) With respect to the Key Stockholders, within three business days prior to the Effective Time, and with respect to all other Stockholders, promptly after the Effective Time, Parent will deliver or cause the Exchange Payment Agent shall mail to each holder of record of a certificate or certificates that immediately prior deliver to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares holders of Parent Common Company Stock pursuant to Section 1.8Certificates: (i) a letter of transmittal (which shall a “Letter of Transmittal”) containing such provisions as Parent and the Payment Agent may reasonably specify (including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Payment Agent and shall be a provision providing for the consent of the holder of such Company Stock Certificate to the appointment of the Stockholders’ Representative as provided for in such form and have such other customary provisions as Parent and the Company may reasonably specifythis Agreement; (ii) an IRS Form W-9 or Form W-8BEN; and (iiiii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon Company Stock Certificates.
(d) As promptly as practicable following surrender of a Company Stock Certificate for cancellation to the Exchange AgentPayment Agent for exchange, together with a duly executed Letter of Transmittal and such letter of transmittal duly executedother documents as may be reasonably required by Parent or the Payment Agent, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing the consideration that number such holder has the right to receive pursuant to and subject to the provisions of whole shares of Parent Common Stock andthis Section 1.5(a)(ii) or Section 1.5(a)(iii), if as applicable, a check representing and the cash Company Stock Certificate so surrendered shall be canceled. To the extent the Payment Agent receives such documents executed by any such holder, together with the Company Stock Certificates held by such holder, Parent shall cause the Payment Agent to deliver the consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5(a)(ii) or Section 1.5(a)(iii), and as applicable, on the day that includes the Effective Time or as soon as practicable thereafter, by wire transfer of cash in immediately available funds, to a bank account designated by such holder in such Letter of Transmittal. If any consideration is to be paid to a Person other than the Person in whose name the Company Stock Certificate surrendered is registered, it shall be a condition of such payment that the Company Stock Certificate so surrendered shall forthwith be canceled. In properly endorsed (with such signature guarantees as may be required by the event letter of transmittal) or otherwise in proper form for transfer, and that the Person requesting payment shall: (A) pay to the Payment Agent any transfer or other Taxes required by reason of such payment to a transfer Person other than the registered holder of ownership the Company Stock Certificate surrendered; or (B) establish to the satisfaction of Shares Parent that such Tax has been paid or is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been be paid. Until surrendered as contemplated by this Section 1.10, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive the consideration that the holder thereof has the right to receive pursuant to the provisions of this Section 1 upon such surrender the certificate representing shares of Parent Common surrender. If any Company Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretiondiscretion and as a condition precedent to the payment of any consideration with respect to the shares of Company Capital Stock previously represented by such Company Stock Certificate, require the delivery owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a suitable bond (in such sum as Parent or indemnitythe Payment Agent may reasonably direct) as indemnity against any claim that may be made against the Payment Agent, Parent, the Surviving Corporation or any affiliated party with respect to such Company Stock Certificate. No interest will be paid or will accrue on any consideration payable upon the surrender of any Company Stock Certificate.
(e) All shares Promptly after the Effective Time, Parent shall cause the Payment Agent to mail to each holder of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares an In-the-Money Company Option that is outstanding and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding unexercised immediately prior to the Effective Time. If: (i) a Letter of Transmittal, after including a provision providing for the Effective Time, Certificates are presented consent of the holder of such In-the-Money Company Option to the Surviving appointment of the Stockholders’ Representative as provided for in this Agreement; (ii) an IRS Form W-9 or Form W-8BEN; and (iii) instructions for use in effecting the surrender of such In-the-Money Company Option in exchange for any reasonthe consideration payable with respect to such In-the-Money Company Option set forth in Section 1.6. Upon surrender of an In-the-Money Company Option for cancellation to the Payment Agent, they together with a duly executed Letter of Transmittal and such other documents as Parent or the Payment Agent may reasonably request, the holder of such In-the-Money Company Option shall be canceled entitled to receive in exchange therefore the consideration payable with respect to such In-the-Money Company Option pursuant to and exchanged as provided in this Article 1subject to Section 1.6, and such In-the-Money Company Option so surrendered shall forthwith be cancelled. No interest will be paid or will accrue on the consideration payable upon the surrender of any In-the-Money Company Option.
(f) No fractions The aggregate amount of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof cash that each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be Person is entitled to receive an amount pursuant to this Section 1 for the shares of cash (without interest) determined Company Capital Stock and shares of In-the-Money Company Common Stock subject to In-the-Money Company Options held by multiplying such Person shall be rounded to the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional sharesnearest cent.
(g) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder or former holder of Company Capital Stock or In-the-Money Company Options such amounts as are required to be deducted or withheld therefrom under the Code or under any other Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(h) Any portion of the Exchange Payment Fund that remains undistributed to the stockholders former holders of Company Capital Stock or In-the-Money Company Options as of the Company upon date 180 days after the one year anniversary the Effective Time Closing Date shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates or In-the-Money Company Options who have not theretofore complied surrendered their Company Stock Certificates or In-the-Money Company Options in accordance with this Article 1 Section 1.10 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and cash in lieu their portion of fractional sharesthe Payment Fund, as the case may be, and without any applicable dividends or distributions with respect to Parent Common Stockinterest thereon.
(hi) Neither Notwithstanding anything in this Agreement to the contrary, neither Parent nor the Company Surviving Corporation shall be liable have any liability to any holder or former holder of Shares Company Capital Stock or In-the-Money Company Options or any other Person for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund any consideration delivered to a any public official in good faith pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement. Any amounts remaining unclaimed by former holders of Company Capital Stock or In-the-Money Company Options three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Body) shall, to the extent permitted by applicable Legal Requirements, become the property of Parent free and clear of any Encumbrance.
Appears in 2 contracts
Sources: Merger Agreement (Acquicor Technology Inc), Merger Agreement (Conexant Systems Inc)
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). From time to time after the Effective Time, as required to effect the deliveries contemplated by subsections Section 1.7(b), (bi) and (c) below, Parent shall deliver make available to its transfer agentthe Exchange Agent certificates representing Parent Subordinate Voting Shares issuable pursuant to this Section 1, (ii) Parent, or a depository or trust institution wholly owned subsidiary of recognized standing selected by Parent and Acquisition and reasonably satisfactory Parent, shall make available to the Company (Exchange Agent cash sufficient to fund the "EXCHANGE AGENT") for the benefit of the cash consideration payable to holders of Shares for exchange Series A Preferred and Series B Preferred in accordance with this Article 1: (iSections 1.5(a)(v),1.5(a)(vi) certificates representing and, if and to the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8extent applicable, 1.5(a)(viii), and (iiiii) Parent, or a wholly owned subsidiary of Parent, shall make available to the Exchange Agent cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock in accordance with Section 1.5(c) and such cash are hereinafter referred to as the "EXCHANGE FUND"dividend and distribution payments in accordance with Section 1.7(c), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable and in any event within ten (10) days after the Effective Time, Parent shall cause the Exchange Agent shall to mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for (x) certificates representing shares Parent Subordinate Voting Shares in the case of Company Common Stock and Series A Preferred and Series B Preferred with respect to which a valid Stock Election was made and cash in the amount that a holder of Series B Preferred Shares has the right to receive if such holder has made a valid Stock Election and there has not been an election made to pay the Optional Make Whole Payment in Parent Common StockSubordinate Shares and (y) cash in the case of Series A Preferred and Series B Preferred with respect to which a valid Stock Election was not made. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (x) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor (1) a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which Subordinate Voting Shares that such holder may be entitled on account has the right to receive, (2) in the case of a fractional share of Parent Common Stock Series A Preferred and Series B Preferred, cash in the amount that such holder has the right to receive pursuant if such holder has not made a valid Stock Election, or in the case of Series B Preferred Shares, cash in the amount that such holder has the right to receive if such holder has made a valid Stock Election and there has not been an election made to pay the provisions Optional Make Whole Payment in Parent Subordinate Voting Shares, (3) cash in lieu of this Article 1any fractional Parent Subordinate Voting Share and (4) any cash payable in accordance with Section 1.7(d), and (y) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender (1) Parent Subordinate Voting Shares in the certificate representing shares case of Parent Company Common Stock and Series A Preferred and Series B Preferred with respect to which a valid Stock Election was made and cash in the amount that a holder of Series B Preferred Shares has the right to receive if such holder has made a valid Stock Election and there has not been an election made to pay the Optional Make Whole Payment in Parent Subordinate Shares, (2) cash in the case of Series A Preferred and Series B Preferred with respect to which a valid Stock Election was not made, (3) cash in lieu of any fractional shares of Parent Common Stock Subordinate Voting Share as contemplated by this Section 1.101 and (4) any cash payable in accordance with Section 1.7(d). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Subordinate Voting Shares and/or cash, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) If any Person who is an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company has not delivered to Parent and the Company a duly executed Affiliate Agreement as contemplated by Section 5.10, then, with respect to Parent Subordinate Voting Shares issuable to such Person pursuant to the Merger, Parent may affix a legend to any certificate representing such shares describing the transfer restrictions of Rule 145 and issue related "stop transfer" instructions with respect thereto.
(d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock Subordinate Voting Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any Subordinate Voting Shares that such holder pursuant has the right to receive in connection with the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate1.7. Subject to the effect of applicable laws, following Following surrender of any such Certificate Company Stock Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest such holder, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock Subordinate Voting Share to which such holder is entitled pursuant to Section 1.10(f1.5(c) and the proportionate amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock Subordinate Voting Shares, and (ii) at the appropriate payment date date, the proportionate amount of any dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitySubordinate Voting Shares.
(e) All shares Each of the Exchange Agent, Parent Common Stock issued upon and the surrender for exchange of Shares in accordance with the terms hereof (including Surviving Corporation shall be entitled to deduct and withhold from any cash paid consideration payable or otherwise deliverable pursuant to Section 1.10(c) this Agreement to any holder or 1.10(f)) former holder of Company Common Stock, Series A Preferred or Series B Preferred such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be deemed treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1paid.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Company Common Stock, Series A Preferred or Series B Preferred or to any other Person with respect to any Parent Subordinate Voting Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Manufacturers Services LTD), Merger Agreement (Manufacturers Services LTD)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company reasonably acceptable to the Company to act as exchange agent in the Merger (the “Exchange Agent”). Within five (5) business days after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit with the Exchange Agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Shares, (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock in accordance with Section 1.5(c) (such cash and shares of Parent Common Stock and such cash are hereinafter Stock, together with any dividends or distributions with respect thereto, being referred to as the "EXCHANGE FUND"“Exchange Fund”), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify (including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss and title to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing therefore the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Merger Consideration, and (B) the Company Stock Certificate so surrendered shall forthwith be immediately canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon the Merger Consideration and any distribution or dividend the record date for which is after the Effective Time. If any Company Stock Certificate shall have been lost, stolen or destroyed, the Exchange Agent will issue in exchange for such surrender lost, stolen or destroyed Company Stock Certificates the Merger Consideration; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing shares of Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and cash to deliver a bond (in lieu of such sum as Parent may reasonably direct) as indemnity against any fractional shares of claim that may be made against the Exchange Agent, Parent Common or the Surviving Corporation with respect to such Company Stock as contemplated by this Section 1.10Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any that such holder pursuant has the right to Section 1.10(f), receive in the Merger until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to surrenders such Company Stock Certificate in accordance with this Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock1.7.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the date one (1) year anniversary after the Effective Time shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates to the Exchange Agent in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect Merger Consideration to Parent Common Stockwhich such holder is entitled pursuant hereto.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, properly delivered to a any public official pursuant to and as required by in compliance with any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Rainbow Technologies Inc), Merger Agreement (Safenet Inc)
Exchange of Certificates. (a) Prior On or prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its transfer agent, or select a depository reputable bank or trust institution of recognized standing selected by Parent and Acquisition and company reasonably satisfactory acceptable to the Company to act as exchange agent in the Merger (the "EXCHANGE AGENTExchange Agent"). Promptly after the Effective Time and in any event within three (3) for business days, Parent shall deposit with the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate a sufficient number of certificates to cover the shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(e). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock Stock) as contemplated by this Section 1.101. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon date 180 days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Applied Micro Circuits Corp), Agreement and Plan of Merger and Reorganization (Applied Micro Circuits Corp)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its transfer agent, or select a depository reputable bank or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory company to act as exchange agent in the Company Merger (the "EXCHANGE AGENT") for ). Promptly after the benefit of Effective Time, Parent shall deposit with the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.8, 1 and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUND."), in exchange for outstanding Shares.
(b) Promptly As soon as practicable after the Effective Time, the Exchange Agent shall will mail to each holder the registered holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing customary provisions (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon Subject to Section 1.5(d), upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that Section 1.5(a)(iii) together with any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required share(s) pursuant to this Agreement; providedthe provisions of Section 1.5(d), however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
and (eB) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time Stock Certificate so surrendered shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Scopus Technology Inc), Merger Agreement (Scopus Technology Inc)
Exchange of Certificates. (a) Prior At or prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution authorize the issuance of recognized standing selected by Parent and Acquisition and reasonably satisfactory shall make available to the Company (the "EXCHANGE AGENT") Exchange Agent, for the benefit of the holders of Shares Company Stock Certificates for exchange in accordance with this Article 1: ARTICLE I, (i) certificates representing the appropriate a sufficient number of shares of Parent Common Stock, to be issued by book-entry transfer, for payment of the Parent Stock issuable Consideration pursuant to Section 1.81.4(a)(ii), and (ii) sufficient cash to be paid in lieu for payment of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock Cash Consideration pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify1.4(a)(i) and (iiiii) instructions sufficient cash for use in effecting the surrender payment of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock in accordance with Section 10. Such amount of cash and shares of Parent Common Stock, together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to as contemplated the “Conversion Fund.” Parent shall be solely responsible for the payment of any fees and expenses of the Exchange Agent.
(b) Following the Effective Time, and upon proper surrender of a Company Stock Certificate for exchange to the Exchange Agent, together with a properly completed Exchange Form, duly executed, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor Cash Consideration and Parent Stock Consideration deliverable in respect of the shares of Company Common Stock represented by this Section 1.10such Company Stock Certificate; thereupon such Company Stock Certificate shall forthwith be cancelled. No interest will be paid or accrued on the Merger Consideration deliverable upon surrender of a Company Stock Certificate.
(c) After the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time.
(d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a and payable to the holders of record date thereof after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate until the holder thereof shall surrender such Company Stock Certificate in accordance with this ARTICLE I. Promptly after the surrender of a Company Stock Certificate in accordance with this ARTICLE I, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of Parent Common Stock into which the shares of Company Common Stock represented by such Company Stock Certificate were converted at the Effective Time pursuant to Section 1.4. No holder of an unsurrendered Company Stock Certificate shall be entitled, until the surrender of such Company Stock Certificate, to vote the shares of Parent Common Stock represented thereby, and no cash payment in lieu into which such holder’s Company Common Stock shall have been converted.
(e) Any portion of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder Conversion Fund that remains unclaimed by the stockholders of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there Company twelve months after the Effective Time shall be paid to the record holder Surviving Company, or its successors in interest. Any stockholders of the certificates representing whole shares Company who have not theretofore complied with this ARTICLE I shall thereafter look only to the Surviving Company, or its successors in interest, for the issuance of the Cash Consideration, the payment of the Parent Common Stock issued in exchange therefor without interest (i) Consideration and the amount payment of any cash payable in lieu of a any fractional share shares deliverable in respect of such stockholders’ shares of Company Common Stock, as well as any accrued and unpaid dividends or distributions on such Parent Stock Consideration. Notwithstanding the foregoing, none of Parent, the Surviving Company, the Exchange Agent or any other Person shall be liable to any former holder of shares of Company Common Stock for any amount delivered in good faith to which such holder is entitled a public official pursuant to Section 1.10(f) and the amount of dividends applicable abandoned property, escheat or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stocksimilar laws.
(df) In the event that any Company Stock Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof person claiming such shares Company Stock Certificate to be lost, stolen or destroyed and the posting by such person of a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate, and in accordance with this ARTICLE I, the Cash Consideration or the Parent Common Stock Consideration and cash in lieu of any fractional shares, if any, as may be required shares deliverable in respect thereof pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stockapplicable.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (First Mid Illinois Bancshares Inc), Merger Agreement (First Mid Illinois Bancshares Inc)
Exchange of Certificates. (a) Prior On the Effective Date, Nu Skin shall deliver instructions to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver Exchange Agent to its transfer agent, or a depository or hold in trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares Company Securities (other than Dissenting Shares), pursuant to the terms of the Exchange Agent Agreement attached hereto as Exhibit E, for exchange and payment in accordance with this Article 1: (i) certificates representing Section 2.09 the appropriate number of shares of Parent Class A Common Stock issuable pursuant to Section 1.8, Article II and (ii) the cash to be paid payable in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND")shares, if any, in each case in exchange for outstanding SharesCompany Securities.
(b) Promptly The Surviving Corporation shall, promptly after the Effective TimeDate, the Exchange Agent shall mail cause to be mailed to each holder of record of a certificate or certificates that (each, a "Company Certificate") which, immediately prior to the Effective Time Time, represented outstanding Shares (the "CERTIFICATES") and Company Securities whose shares were converted into the right to receive shares of Parent Class A Common Stock pursuant to Section 1.8: this Article II (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Company Certificates shall pass pass, only upon delivery of the such Company Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company Nu Skin may reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for Class A Common Stock pursuant to this Article II and the cash payable in lieu of fractional shares, if any.
(c) At any time on or after the Effective Date, a holder of Company Certificates may surrender such certificates representing shares of Parent Common Stockto the Exchange Agent. Upon surrender of a Certificate Company Certificates for cancellation to the Exchange Agent, together with such the letter of transmittal transmittal, duly executed, completed and validly executed in accordance with the instructions thereto:
(i) the holder of such Certificate Company Certificates shall be entitled to receive in exchange therefor a certificate representing therefor:
(A) one or more certificates representing, in the aggregate, that whole number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Class A Common Stock that such holder has the right to receive pursuant to the provisions of this Article Section 2.06 in respect of the Company Securities represented by such Company Certificates,
(1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered ) minus such holder's proportionate interest in the transfer records Total Escrow Shares (rounded up to the nearest whole share) (the "Escrow Shares"), which shall be equal to the product of (x) the Company, a certificate representing Total Escrow Shares multiplied by (y) the proper quotient of (a) the number of shares of Parent Class A Common Stock may be issued to a transferee if the Certificate representing that such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only holder has the right to receive upon such surrender pursuant to the certificate representing shares provisions of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated Section 2.06 divided by this Section 1.10.(b) the Nu Skin Class A Shares, and
(c2) No dividends or other distributions declared or made after minus such holder's proportionate interest in the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid Total Cholestin Escrow Shares (rounded up to the holder of any unsurrendered Certificate with respect to nearest whole share) (the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law."Cholestin Escrow
Appears in 2 contracts
Sources: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Exchange of Certificates. (a) Prior As of the Effective Time, a bank or trust company to be designated by the Parent or the New Parent prior to the record date for the Special Meeting and consented to by the Company (such consent not to be unreasonably withheld or delayed) (the "Exchange Agent") shall act as exchange agent in effecting the exchange, for the Company Merger Consideration, of certificates (the "Certificates") that, prior to the Effective Time, as required by subsections (b) and (c) below, represented Company Shares entitled to exchange pursuant to Section 2.1(a)(i). The New Parent shall deliver to its transfer agent, or a depository or deposit with the Exchange Agent in trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares Certificates formerly representing Company Shares, cash together with certificates for exchange in accordance with this Article 1: (i) certificates representing the appropriate such number of shares of New Parent Common Stock issuable into which the Company Shares are converted pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly 2.1(a)(i)(together with any dividends or distributions with respect thereto with a record date after the Effective Time, the "Exchange Agent Fund"). Promptly after the Effective Time (but in any event within three business days thereof), the New Parent shall mail cause to be mailed to each record holder of record of a certificate or certificates Certificates that immediately prior to the Effective Time represented outstanding Company Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common which shall not previously have been surrendered in connection with a Stock pursuant to Section 1.8: (iElection) a form of letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting surrendering such Certificates and receiving the Company Merger Consideration therefor. Subject to any applicable withholding tax requirements, upon the surrender of the Certificates in exchange for certificates representing shares each such Certificate together with a duly completed and executed letter of Parent Common Stock. Upon surrender of a Certificate for cancellation to transmittal, the Exchange Agent, together with such letter of transmittal duly executed, Agent shall (x) pay to the holder of such Certificate shall be entitled formerly representing Company Shares cash equal to receive in exchange therefor the amount of cash due such holder after giving effect to any Stock Election made by such holder and (y) issue to the holder of such Certificate a certificate representing for that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of the New Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented equal to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing number of shares of New Parent Common Stock due under the Company Merger Consideration elected by such holder, and cash in lieu of any fractional such Certificate shall forthwith be cancelled. Only certificates for whole shares of New Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be issued, with cash paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to as provided in Section 1.10(f)2.4(b) below. Until so surrendered and exchanged, until the holder of record of each such Certificate (other than Certificates representing Company Shares held by New Parent or the Company or Dissenting Shares) shall surrender such Certificaterepresent solely the right to receive the Company Merger Consideration therefor. Subject to the effect of applicable laws, following surrender of If any such Certificate there shall be paid to the record holder of the certificates representing whole shares of for New Parent Common Stock are to be issued to a person other than the holder in whose name the Certificate formerly representing Company Shares surrendered in exchange therefor without interest (i) is registered, it shall be a condition to such issuance that the amount person requesting such issuance shall pay to the Exchange Agent any transfer or other taxes required by reason of any cash payable in lieu the issuance of a fractional share of such certificates for New Parent Common Stock to which a person other than the registered holder of the Certificate surrendered, or such person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder is entitled of Company Shares for any Company Merger Consideration delivered to a public official pursuant to Section 1.10(fapplicable abandoned property, escheat and similar laws.
(b) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole No fractional shares of New Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with Certificates, no dividend or distribution of the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) New Parent shall be deemed to have been issued in full satisfaction of all rights pertaining relate to such Shares fractional share interests and there shall be no further registration such fractional share interests will not entitle the owner thereof to vote or to any rights of transfers on the stock transfer books a stockholder of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeNew Parent. If, after As promptly as practicable following the Effective Time, Certificates are presented the New Parent shall pay to each record holder of Company Shares an amount in cash, if any, equal to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined product obtained by multiplying the Average Stock Price by (i) the fractional share interest to which such holder (after taking into account all Company Shares held at the Effective Time by such holder) would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused entitled by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.ii)
Appears in 2 contracts
Sources: Merger Agreement (Protection One Inc), Agreement and Plan of Contribution and Merger (Lifeline Systems Inc)
Exchange of Certificates. (a) Prior No later than 10 business days prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its transfer agent, or select a depository reputable bank or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory company to act as exchange agent in the Company Merger (the "EXCHANGE AGENT") to the extent that such Exchange Agent is different than the exchange agent named in the letter of transmittal sent to the stockholders of the Company in connection with the Offer. Within 5 business days after the Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of Shares for exchange in accordance with this Article 1: Shares, (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81 (other than Shares purchased pursuant to the Offer which shall have been paid for in accordance with Section 1.1 of this Agreement), and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.8(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUND."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify (including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss and title to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares Parent Common Stock (plus cash in lieu of fractional shares, if any, of Parent Common Stock). Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.8 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be immediately canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the Merger Consideration and any distribution or dividend the record date for which is after the Effective Time. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate, and, in such case, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificates the shares of Parent Common Stock and any cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10shares.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.10 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the one year anniversary date 180 days after the Effective Time shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.10 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Datron Systems Inc/De), Merger Agreement (Titan Corp)
Exchange of Certificates. (a) Prior On or prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its transfer agent, or select a depository reputable bank or trust institution of recognized standing selected by Parent and Acquisition and company reasonably satisfactory to the Company to act as exchange agent in the Merger (the "EXCHANGE AGENT"“Exchange Agent”). Promptly after the Effective Time, but in no event later than two (2) for business days thereafter, Parent shall deposit with the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUND"), in exchange for outstanding Shares“Exchange Fund.”
(b) Promptly As soon as reasonably practicable after the Effective Time, but in no event later than two (2) business days thereafter, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent, in consultation with the Company, may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate or evidence of shares in book entry form representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock Stock) as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common 1. If any Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretiondiscretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the delivery owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a suitable bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions Corporation with respect to Parent Common Stocksuch Company Stock Certificate.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (On Semiconductor Corp), Merger Agreement (Catalyst Semiconductor Inc)
Exchange of Certificates. (a) Prior to From and after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository bank or trust institution of recognized standing selected company to be designated by Parent and Acquisition and reasonably satisfactory to with the concurrence of the Company shall act as exchange agent (the "EXCHANGE AGENTExchange Agent") for in effecting the benefit exchange of the holders Merger Price for certificates which prior to the Effective Time represented Shares and which as of Shares for exchange in accordance with this Article 1: the Effective Time represent the right to receive the Merger Price (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDCertificates"), in exchange for outstanding Shares.
(b) . Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of record Certificates a form of letter of transmittal and instructions for use in surrendering such Certificates and receiving the Merger Price therefor in a certificate form approved by Parent and the Company. At or certificates that immediately prior to the Effective Time represented outstanding Shares (Time, the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which Purchaser shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to deposit in trust with the Exchange Agent and shall be immediately available funds in an amount sufficient to pay the Merger Price for all such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation Shares to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered 's stockholders as contemplated by this Section 1.102.3. Such funds shall be invested by the Exchange Agent as directed by Parent or the Surviving Corporation, PROVIDED that such investments shall be in obligations of or guaranteed by the United States of America or of any agency thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation, respectively, or in deposit accounts, certificates of deposit or banker's acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks with capital, surplus and undivided profits aggregating in excess of $250 million (based on the most recent financial statements of such bank which are then publicly available at the SEC or otherwise). Upon the surrender of each Certificate and the issuance and delivery by the Exchange Agent of the Merger Price for the Shares represented thereby in exchange therefor, the Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each Certificate shall be deemed at any time after the Effective Time to represent only solely the right to receive upon the Merger Price for the Shares represented thereby, without any interest thereon. Upon the surrender and exchange of such surrender an outstanding Certificate, the certificate representing shares holder thereof shall receive the Merger Price multiplied by the number of Parent Common Stock and Shares represented by such Certificate, without any interest thereon. If any cash is to be paid to a name other than that in lieu which the Certificate surrendered in exchange therefor is registered, it shall be a condition to such payment or exchange that the person requesting such payment or exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such cash to a name other than that of the registered holder of the Certificate surrendered, or such person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any fractional shares party hereto shall be liable to a holder of Parent Common Stock as contemplated by this Section 1.10Certificates for any part of the Merger Price payments made to a public official pursuant to applicable abandoned property, escheat or similar laws.
(cb) No dividends or other distributions declared or made Promptly following the sixth month after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyedTime, the Exchange Agent shall issue return to the Surviving Corporation all cash relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor upon the making of an affidavit of that fact by Merger Price for such Shares, without any interest thereon, but shall have no greater rights against the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as Surviving Corporation than may be required pursuant accorded to this Agreement; providedgeneral creditors of the Surviving Corporation under applicable law. At and after the Effective Time, however, that Parent holders of Certificates shall cease to have any rights as stockholders of the Company except for the right to surrender such Certificates in exchange for the Merger Price for such Shares or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender to perfect their right to receive payment for exchange of their Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction 262 of all rights pertaining to such Shares the DGCL and Section 2.4 below, and there shall be no further registration of transfers on the stock transfer books of the Company or the Surviving Company Corporation of the any Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1Merger.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)
Exchange of Certificates. (a) Prior to From and after the Effective Time, as required by subsections (b) and (c) beloweach holder of an outstanding certificate which immediately prior to the Effective Time represented shares of Company Common Stock shall be entitled to receive in exchange therefor, Parent shall deliver upon surrender thereof to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and an exchange agent reasonably satisfactory to Parent and the Company (the "EXCHANGE AGENTExchange Agent") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) ), a certificate or certificates representing the appropriate number of whole shares of Parent Common Stock issuable to which such holder is entitled pursuant to Section 1.83.1. Notwithstanding any other provision of this Agreement, (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock have surrendered them for exchange as provided herein, no dividends shall be paid with respect to any shares represented by such certificates and no payment for fractional shares shall be made and (ii) cash without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid in lieu on any dividends or any payment for fractional shares. Upon surrender of fractional a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, Parent shall pay to the holder of such certificate the amount of any dividends which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Parent Common Stock represented by the certificate or certificates issued upon such surrender.
(such a) If any certificate for shares of Parent Common Stock and such cash are hereinafter referred is to as be issued in a name other than that in which the "EXCHANGE FUND"), certificate for shares of Company Common Stock surrendered in exchange for outstanding Sharestherefor is registered, a condition of such exchange shall be the person requesting such exchange pay the applicable transfer or other taxes required by reason of such issuance.
(b) Promptly after the Effective Time, Parent shall make available to the Exchange Agent the certificates representing shares of Parent Common Stock required to effect the exchanges referred to in Section 3.2 above and cash for payment of any fractional shares referred to in Section 3.3.
(c) Promptly after the Effective Time, Parent's Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares shares of Company Common Stock (the "CERTIFICATESCompany Certificates") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Company Certificates shall pass pass, only upon actual delivery of the Company Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for certificates representing shares of Parent Common StockStock and such holder's respective portion of the Cash Consideration. Upon surrender of a Certificate Company Certificates for cancellation to the Exchange Agent, together with such a duly executed letter of transmittal duly executedand such other documents as the Exchange Agent shall reasonably require, the holder of such Certificate Company Certificates shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing into which the cash consideration to which such holder may be entitled on account shares of a fractional share of Parent Company Common Stock that such holder has theretofore represented by the right to receive Company Certificates so surrendered shall have been converted pursuant to the provisions of this Article 1Section 3.1(a), along with such holder's respective portion of the Cash Consideration, and thereafter the Certificate Company Certificates so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In Nine (9) months after the event that Effective Date, the Exchange Agent shall deliver to Parent all cash, certificates (including any Parent Common Stock) and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Company Certificate may surrender such Company Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar Laws) receive in exchange therefor the Net Closing Consideration, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Merger Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of Company Common Stock for Shares any Net Closing Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(e) If any Company Certificate shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit or declaration and the signing by such person of that fact by a Lost Stock Indemnity in form reasonably acceptable to the holder thereof Exchange Agent (but without any bond or similar requirement) claiming such shares of Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock and cash deliverable in lieu respect thereof determined in accordance with this Section 3.2. If no Lost Stock Indemnity form has been signed by such person, when authorizing such payment in exchange therefor, the Board of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or Directors of the Exchange Agent Surviving Corporation may, in its discretiondiscretion and as a condition precedent to the issuance thereof, require the delivery owner of a suitable such lost, stolen or destroyed Company Certificate to give the Surviving Corporation such indemnity (but no bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed required), as it may reasonably request as protection against any claim that may be made against the Surviving Corporation with respect to the Company Certificate alleged to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. Iflost, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1stolen or destroyed.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (National Technical Systems Inc /Ca/), Merger Agreement (National Technical Systems Inc /Ca/)
Exchange of Certificates. (a) Prior to At the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Atom Common Stock and such cash Atom Preferred Stock that are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior thereto will, by virtue of the Merger and without further action, cease to the Effective Time represented outstanding Shares (the "CERTIFICATES") exist, and whose all such shares were will be converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to from Shockwave the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shockwave Merger Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f2.1, subject to the provisions of Section 2.1(e) regarding the elimination of fractional Merger Shares), Section 2.1(f) (regarding Dissenting Shares) and Section 2.5 (regarding the amount withholding of dividends Escrow Shares). At the Closing, each holder of shares of Atom Common Stock and Atom Preferred Stock that are outstanding immediately prior thereto will surrender either (i) the certificate(s) for such shares (each a "ATOM CERTIFICATE"), duly endorsed to Shockwave for cancellation as of the Effective Time, or other distributions with a record date (ii) an affidavit of lost certificate and an indemnity in form and substance reasonable satisfactory to Shockwave (the "AFFIDAVIT"). Promptly after the Effective Time theretofore paid with respect to and receipt of such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Atom Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional sharesAffidavit, as the case may be:
(a) Shockwave or its transfer agent will issue to each tendering holder of an Atom Certificate or an Affidavit, certificates (a "TENDERING ATOM HOLDER") for the number of Shockwave Merger Shares to which such holder is entitled pursuant to Section 2.1, subject to the provisions of Section 2.1(e) (regarding the elimination of fractional Merger Shares), Section 2.1(f) (regarding Dissenting Shares) and any applicable Section 2.5 (regarding the withholding of Escrow Shares); and (b) Shockwave or its transfer agent will pay by check to each Tendering Atom Holder cash in the amounts payable to such holder in accordance with the provisions of Sections 2.1(f). 50 52 (b) No dividends or distributions payable to holders of record of Shockwave Common Stock or Shockwave Preferred Stock after the Effective Time will be paid to the holder of any unsurrendered Atom Certificate unless and until the holder of such unsurrendered Atom Certificate surrenders such Atom Certificate or an Affidavit to Shockwave as provided above. Subject to the effect, if any, of applicable escheat and other laws, following surrender of any Atom Certificate or Affidavit, there will be delivered to the person entitled thereto, without interest, the amount of any dividends and distributions theretofore paid with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Shockwave Common Stock (or dividends or distributions with respect thereto) or cash from so withheld as of any date subsequent to the Exchange Fund delivered Effective Time and prior to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawsuch date of delivery.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Macromedia Inc), Agreement and Plan of Reorganization (Macromedia Inc)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or deposit with a depository bank or trust institution of recognized standing selected company designated by Parent and Acquisition and reasonably satisfactory to the Company act as paying agent (the "EXCHANGE AGENTPaying Agent") for the benefit of the holders of Shares shares of Company Common Stock, for exchange in accordance with this Article 1: (i) II, certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock Stock, together with any dividends or distributions with respect thereto and such cash are to be paid pursuant to Section 2.11(e) with respect to any fraction of a share of Parent Common Stock, being hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), ) issuable pursuant to Section 2.06 in exchange for outstanding Sharesshares of Company Common Stock. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Parent Common Stock contemplated to be issued pursuant hereto out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Paying Agent shall mail to each holder of record of a certificate or certificates that which, immediately prior to the Effective Time Time, represented outstanding Shares shares of Company Common Stock (the "CERTIFICATESCertificates") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: ): (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Paying Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) ); and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed, and any other required documents, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1II and cash in lieu of fractional shares of Parent Common Stock as contemplated by Section 2.11(e), and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that Company Common Stock which is not registered in the transfer records of the Company, a certificate representing the proper appropriate number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares Company Common Stock is presented to the Exchange Paying Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.102.11, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.102.11. The Paying Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Common Stock held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of persons entitled thereto.
(c) No dividends or other distributions declared or made after the Effective Time with respect to shares of Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate certificate for shares of Company Common Stock with respect to the shares of Parent Common Stock represented thereby, thereby and no cash payment in lieu of fractional shares of Parent Common Stock shall be paid to any such holder pursuant to Section 1.10(f), 2.11(e) until the holder surrender of record the certificate for shares of such Certificate shall surrender such CertificateCompany Common Stock with respect to the shares of Parent Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such Certificate certificates, there shall be paid to the record holder of the certificates certificate representing whole shares of Parent Common Stock issued in exchange therefor connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f2.11(e) and the appropriate amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares certificates representing shares of Company Common Stock in accordance with the terms hereof of this Article II (including any cash paid pursuant to Section 1.10(c2.11(c) or 1.10(f2.11 (e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to such Shares and there shall be no further registration the shares of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1Common Stock so exchanged.
(fe) No fractions Notwithstanding any other provision of a share of Parent Common Stock shall be issued in the Mergerthis Agreement, but in lieu thereof each holder of Shares shares of Company Common Stock who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of receive, in lieu thereof, a cash payment (without interest) determined equal to such fraction multiplied by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment average price of the cash consideration in lieu last reported sale prices per share of issuing fractional shares was not separately bargained Parent Common Stock for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by five trading days immediately preceding the issuance of fractional sharesClosing Date.
(gf) Any portion of the Exchange Fund that Merger Consideration deposited with the Paying Agent pursuant to this Section 2.11 which remains undistributed to the stockholders holders of the certificates representing shares of Company upon the one year anniversary Common Stock for six months after the Effective Time shall be delivered to Parent upon demand, and any stockholders holders of shares of Company Common Stock prior to the Company Effective Time who have not theretofore complied with this Article 1 II shall thereafter look only to Parent for payment of their claim for shares of Parent Common Stock and Stock, any cash in lieu of fractional shares, as the case may beshares of Parent Common Stock, and any applicable dividends or distributions with respect to Parent Common Stock.
(hg) Neither Parent nor None of Sub or the Company or Parent or the Paying Agent shall be liable to any holder person in respect of Shares for shares of any cash or Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official office pursuant to and as required by any applicable abandoned property, escheat or similar law.
(h) The Paying Agent shall invest any cash included in the Exchange Fund for payments in lieu of fractional shares, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make the payments contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) Parent shall pay all charges and expenses of the Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (Paragon Health Network Inc), Merger Agreement (Mariner Health Group Inc)
Exchange of Certificates. (a) Prior to the Effective Time, As soon as required by subsections practicable but in any event within seven (b7) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly days after the Effective Time, the Exchange Agent shall mail Parent will send to each holder of record the registered holders of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: (i) Certificates a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Closing Per Share Consideration calculated in accordance with Section 1.8(a). Upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, Parent shall deliver to (i) the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing Company Stock Certificate, (A) that number of whole shares of Parent Common Stock andportion, if applicableany, a check representing of the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock Closing Per Share Consideration that such holder has the right to receive at such time pursuant to the provisions of this Article 1Section 1.8(a) in cash, via wire transfer in immediately available funds, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, (B) a certificate representing that number of shares of Parent Common Stock, if any, that such holder has the proper right to receive at such time pursuant to Section 1.8(a), less such holder’s Per Share Initial Escrow Amount, and (ii) deliver to the Escrow Agent (as defined herein) under the Escrow Agreement on behalf of such holder (A) that portion, if any, of such holder’s Per Share Initial Escrow Amount payable in cash, and (B) a certificate representing that number of shares of Parent Common Stock, if any, comprising such holder’s Per Share Initial Escrow Amount, provided that any certificates representing Parent Common Stock to be delivered to the holder of a Company Stock Certificate under clause (i) above and to the Escrow Agent under clause (ii) above shall, in each case, represent only whole shares of Parent Common Stock. In lieu of any fractional shares to which such holder would otherwise be entitled, after combining any fractional interests of such holder into as many whole shares as is possible, the holder of such Company Stock Certificate shall be entitled to receive cash in an amount equal to the sum of (1) the dollar amount (rounded to the nearest whole cent) determined by multiplying the Applicable Parent Share Price by the fraction of a share of Parent Common Stock that would otherwise be deliverable to such holder under clause (i) above and (2) the dollar amount (rounded to the nearest whole cent) determined by multiplying the Applicable Parent Share Price by the fraction of a share of Parent Common Stock that would otherwise be deliverable to the Escrow Agent under clause (ii) above. Notwithstanding the foregoing, Parent may deliver to the Escrow Agent one certificate representing the total number of shares of Parent Common Stock may to be issued held in escrow pursuant to a transferee if the Certificate this Section 1.11(a) in lieu of issuing separate certificates representing any shares of Parent Common Stock comprising such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paidholder’s Per Share Initial Escrow Amount. All Company Stock Certificates so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.101.11, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the Closing Per Share Consideration in accordance with this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the payment of any cash or issuance of any certificate representing shares of Parent Common Stock and or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any fractional shares of claim that may be made against Parent Common or the Surviving Corporation with respect to such Company Stock as contemplated by this Section 1.10Certificate.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.11 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to Section 1.10(f)this Agreement such amounts as it reasonably determines that it is required to deduct or withhold therefrom under the Code or under any provision of state, until local or foreign tax law and to collect Forms W-8 or W-9, as applicable, or similar information from the holder holders of record Company Common Stock and any other recipients of payments hereunder. To the extent such Certificate shall surrender amounts are so deducted or withheld, such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there amounts shall be treated for all purposes under this Agreement as having been paid to the record Person to whom such amounts would otherwise have been paid.
(d) Any portion of the Adjusted Total Merger Consideration which remains undistributed to the holders of Company Common Stock for one hundred eighty (180) days after the Effective Time shall be retained by Parent, and any holder of the certificates representing whole Company Common Stock who has not previously complied with this Section 1.11 shall thereafter look only to Parent, as a general unsecured creditor, for payment of its claim for cash, shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of Stock, any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of any dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law. If any Company Stock Certificate shall not have been surrendered prior to one (1) year after the Effective Time (or immediately prior to such earlier date on which any shares of Parent Common Stock and any cash payable to the holder of such Company Stock Certificate or any dividends or distributions payable to the holder of such Company Stock Certificate pursuant to this Section 1.11 would otherwise escheat to or become the property of any Governmental Body), any such shares of Parent Common Stock, or cash, dividends or distributions in respect of such Company Stock Certificate, shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f) The Company will calculate the proper amount of Taxes required to be withheld for each holder of Company Common Stock and/or required to be paid by the Surviving Corporation with respect to each distribution of the Closing Per Share Consideration, which such Taxes shall include, if applicable, full FICA, full FUTA, full Employment Insurance, federal income taxes and any applicable state and provincial income taxes. Such withholding information shall be certified by the Company and be provided to Parent at least five (5) Business Days prior to the Closing to facilitate the distributions by Parent to holders of Company Common Stock required by this Agreement and shall be subject to the review and reasonable approval of Parent in all respects. The Company shall provide Parent and its Representatives with reasonable access to all relevant information and documentation relating to the Tax withholding calculation and the preparation thereof, including, without limitation, access to supporting detail and schedules. Parent shall or shall cause the Surviving Corporation to remit such Tax withholdings on a timely basis to the relevant taxing authorities.
Appears in 2 contracts
Sources: Merger Agreement (Applied Micro Circuits Corp), Merger Agreement (Applied Micro Circuits Corp)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent Terra Tech shall mail to each holder of record of a certificate or certificates ("Certificates") that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares that were converted into the right to receive Payment Securities or cash in lieu of any fractional shares of Parent Common Stock pursuant to Section 1.8: this Agreement, (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common StockPayment Securities. Upon surrender of a Certificate Certificates for cancellation to the Exchange Agent, Terra Tech together with such letter of transmittal transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, the and such other documents as may reasonably be required by Terra Tech (including any required Form W-9 or Form W-8), each holder of such Certificate Certificates shall be entitled to receive in exchange therefor a certificate (x) one or more certificates representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration Payment Securities (after aggregating all Certificates surrendered by such holder) to which such holder may is entitled pursuant to this Agreement, less the number of shares of Payment Securities to be entitled on account deposited into escrow pursuant to the Reorganization Agreement and (y) a check in the amount of a dollars in lieu of fractional share of Parent Common Stock shares that such holder has the right to receive pursuant to the provisions of this Article 1Merger Agreement, and the Certificate Certificates so surrendered shall forthwith be canceled. Until so surrendered, outstanding Certificates will be deemed, from and after the Effective Time, for all corporate purposes, to evidence only the right to receive upon surrender thereof the number of whole shares of Payment Securities to which such holder is entitled pursuant to this Agreement and an amount in cash in lieu of the issuance of any fractional shares. No interest will be paid or accrued on any cash payable in lieu of fractional shares of Payment Securities. In the event of a transfer of ownership of Shares that is was not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock Payment Securities and cash payable in lieu of fractional shares may be issued to a such transferee if the Certificate representing such Shares is presented to the Exchange Agent Terra Tech and is accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(cb) No dividends or other distributions declared or made after the Effective Time date hereof with respect to Parent Common Stock Payment Securities with a record date after the Effective Time shall will be paid to the holder any holders of any unsurrendered Certificate Certificates with respect to the shares of Parent Common Stock Payment Securities represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), thereby until the holder of record of any such Certificate Certificates shall surrender such CertificateCertificates. Subject to the effect of applicable lawslaw, following surrender of any such Certificate there Certificates, Terra Tech shall be paid deliver to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor holders thereof, without interest interest, (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which promptly after such holder is entitled pursuant to Section 1.10(f) and surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of the whole shares of Parent Common Stock Payment Securities represented thereby, and (ii) at the appropriate payment date date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender occurring after surrender, payable with respect to such whole shares of Parent Common StockPayment Securities.
(dc) In the event that any Certificate for Shares Certificates shall have been lost, stolen or destroyeddestroyed prior to the Closing Date, the Exchange Agent Terra Tech shall issue and pay in exchange therefor for such lost, stolen or destroyed Certificates, upon the making receipt of an affidavit of that fact by the holder thereof (reasonably satisfactory to Terra Tech) and such other documents as Terra Tech may reasonably require, certificates representing the shares of Parent Common Stock and Payment Securities into which the Shares represented by such Certificates were converted pursuant to this Agreement, cash in lieu of for fractional shares, if any, as may be required pursuant hereto, and any dividends or distributions payable pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitySection 3.03(b).
(ed) All shares of Parent Common Stock Payment Securities, cash in lieu of fractional shares of Payment Securities and dividends or other distributions with respect to Payment Securities issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares Shares, and there shall be no further registration of transfers on the stock transfer books records of the Surviving Company Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(fe) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed Notwithstanding anything to the stockholders of contrary herein, neither Terra Tech, Company, the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and Surviving Corporation nor any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company party hereto shall be liable to any a holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered any amount properly paid to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Terra Tech Corp.), Merger Agreement (Terra Tech Corp.)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT"“Exchange Agent”) for the benefit of the holders of Shares for exchange in accordance with this Article 12: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, 2.8 and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"“Exchange Fund”), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES"“Certificates”) and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.82.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 12, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.102.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.102.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f2.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f2.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c2.10(c) or 1.10(f2.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 12.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average closing price of a share of Parent Common Stock Price on the NYSE (as reported in the New York City edition of the Wall Street Journal or, if not reported thereby, another nationally recognized source) on the date of the Effective Time by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 2 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
(i) Notwithstanding anything herein to the contrary, Parent or Exchange Agent may withhold Merger Consideration as they reasonably deem necessary to satisfy their withholding obligations under applicable law, and the withholding of any such Merger Consideration for such purpose shall be treated as the payment thereof to the person from whom such amount was withheld for purposes of determining whether such person received amounts to which such person is entitled hereunder.
Appears in 2 contracts
Sources: Merger Agreement (K2 Inc), Merger Agreement (K2 Inc)
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). As soon as practicable after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.8, 1 and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(f). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock) and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) Notwithstanding anything to the contrary contained in this Agreement, no shares of Parent Common Stock (or certificates therefor) shall be issued in exchange for any Company Stock Certificate to any Person who may be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company until such Person shall have delivered to Parent and the Company a duly executed Affiliate Agreement as contemplated by this Section 1.105.10.
(cd) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityinterest).
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the one year anniversary date 180 days after the Effective Time shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(hf) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Clare Inc)
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the “Exchange Agent”). Parent shall deposit with the Exchange Agent (i) at or prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) at, prior to or promptly after the Effective Time, but in no event later than two (2) business days thereafter, cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUND"), in exchange for outstanding Shares“Exchange Fund.”
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") Company Stock Certificates and whose shares were converted into the right to receive uncertificated shares of Parent Company Common Stock pursuant to Section 1.8: (“Uncertificated Shares”) (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the such Company Stock Certificates or transfer of such Uncertificated Shares to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates and Uncertificated Shares in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation or Uncertificated Shares to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such EXECUTION COPY Company Stock Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor a certificate or evidence of shares in book entry form representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate or Uncertificated Shares so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate and Uncertificated Share shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock Stock) as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common 1. If any Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretiondiscretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the delivery owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a suitable bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions Corporation with respect to Parent Common Stocksuch Company Stock Certificate.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Amis Holdings Inc), Merger Agreement (On Semiconductor Corp)
Exchange of Certificates. (a) Prior to As promptly as practicable after the Effective Time (but in any event within sixty (60) days following the Effective Time, as required by subsections (b) and (c) below), Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1shall: (i) certificates representing cause the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, 1.5(a)(i) to be issued in book-entry form; and (ii) cash to be paid make payments in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"in accordance with Section 1.5(c), in exchange for outstanding Shares.
(b) Promptly As promptly as practicable after the Effective Time, Parent will mail or otherwise provide to the Exchange Agent shall mail to each holder Persons who were record holders of record of a certificate or certificates that Company Share Certificates immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Share Certificates in exchange for certificates cash in respect of fractional shares pursuant to Section 1.5(c), if any, and book-entry shares representing shares of Parent Common Stock. Upon surrender of a Company Share Certificate to Parent for cancellation to the Exchange Agentexchange, together with such letter of transmittal duly executed, other documents as may be reasonably required by Parent: (A) the holder of such Company Share Certificate shall be entitled to receive in exchange therefor a certificate therefor, book-entry shares representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5(a)(i) (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)); and (B) the Company Share Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Share Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing book-entry shares of Parent Common Stock pursuant to the provisions of Section 1.5(a)(i) (and cash in lieu of any fractional shares share of Parent Common Stock pursuant to Section 1.5(c)). If any Company Share Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated by this Section 1.10a condition to the payment of any cash or the issuance of any book-entry shares representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Share Certificate to provide an appropriate lost affidavit with respect to such Company Share Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Share Certificate with respect to the shares of Parent Common Stock represented therebythat such holder has the right to receive in the Merger until such holder surrenders such Company Share Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and no distributions, without interest).
(d) Any holders of Company Share Certificates who have not surrendered their Company Share Certificates in accordance with this Section 1.7 as of the date 180 days after the date on which the Merger becomes effective shall thereafter look only to Parent for satisfaction of their claims for shares of Parent Common Stock pursuant to the provisions of Section 1.5(a)(i), cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f1.5(c) and the amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(de) In the event that any Certificate for Shares shall have been lostSubject to applicable law, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares each of Parent Common Stock and cash in lieu of fractional shares, if any, the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required pursuant to this Agreement; providedbe deducted or withheld from such consideration under the Code or any provision of state, however, that Parent local or non-U.S. Tax law or under any other applicable Legal Requirement. To the Exchange Agent may, in its discretion, require the delivery of a suitable bond extent such amounts are so deducted or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance withheld and paid to or deposited with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) appropriate Governmental Body, such amounts shall be deemed treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been issued in full satisfaction of all rights pertaining paid. Parent shall take commercially reasonable efforts to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for reduce or eliminate any reason, they shall be canceled and exchanged as provided in this Article 1required withholding.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Share Capital or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or other similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (AIT Therapeutics, Inc.), Merger Agreement (AIT Therapeutics, Inc.)
Exchange of Certificates. (a) Prior At or prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver authorize the issuance of and shall make available to its transfer agentComputershare Trust Company, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company N.A., Parent’s exchange agent (the "EXCHANGE AGENT") “Exchange Agent”), for the benefit of the holders of Shares Company Stock Certificates and holders of Company Stock issued by book entry for exchange in accordance with this Article 1: ARTICLE I, (i) certificates representing the appropriate a sufficient number of shares of Parent Common Stock issuable Stock, to be issued by book-entry transfer, for payment of the Merger Consideration pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify1.4(a) and (ii) instructions sufficient cash for use in effecting the surrender payment of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock in accordance with Section 1.8. Such amount of cash and shares of Parent Common Stock, together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to as contemplated the “Conversion Fund.” Parent shall be solely responsible for the payment of any fees and expenses of the Exchange Agent.
(b) Within two Business Days after the Closing Date, Parent shall cause the Exchange Agent to mail to each holder of record of Company Stock Certificates (excluding Dissenting Shares) a letter of transmittal (“Letter of Transmittal”) in a form as Parent and the Company mutually agree, which specifies, among other things, that delivery shall be effected, and risk of loss and title to Company Stock Certificates shall pass, only upon delivery of such certificates to the Exchange Agent, together with instructions for use in effecting the surrender of the Company Stock Certificates pursuant to this Agreement. 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 Letters of Transmittal, provided that such Share Representative certifies that each such Letter of Transmittal covers all the shares of Company Common Stock held by each such Share Representative for a particular beneficial owner. Any holder of Company Stock issued by book entry shall not be required to deliver a Company Stock Certificate but shall be required to deliver an executed Letter of Transmittal to receive the Merger Consideration with respect to such book entry shares of Company Common Stock. As used in this Section 1.10Agreement, “Business Day.” means any day except Saturday, Sunday and any day on which banks in Mattoon, Illinois, or Paris, Illinois, are authorized or required by law or other government action to close.
(c) Upon proper surrender of a Company Stock Certificate for exchange to the Exchange Agent, together with a properly completed Letter of Transmittal, duly executed, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor the Merger Consideration deliverable in respect of the shares of Company Common Stock represented by such Company Stock Certificate; thereupon such Company Stock Certificate shall forthwith be cancelled. No interest will be paid or accrued on the Merger Consideration deliverable upon surrender of a Company Stock Certificate.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time.
(e) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a and payable to the holders of record date thereof after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate until the holder thereof shall surrender such Company Stock Certificate in accordance with this ARTICLE I. Promptly after the surrender of a Company Stock Certificate in accordance with this ARTICLE I, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of Parent Common Stock into which the shares of Company Common Stock represented by such Company Stock Certificate were converted at the Effective Time pursuant to Section 1.4. No holder of an unsurrendered Company Stock Certificate shall be entitled, until the surrender of such Company Stock Certificate, to vote the shares of Parent Common Stock represented thereby, and no cash payment in lieu into which such holder’s Company Common Stock shall have been converted.
(f) Any portion of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder Conversion Fund that remains unclaimed by the shareholders of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there Company twelve months after the Effective Time shall be paid to the record holder Surviving Company, or its successors in interest. Any shareholders of the certificates representing whole shares Company who have not theretofore complied with this ARTICLE I shall thereafter look only to the Surviving Company, or its successors in interest, for the issuance of Parent Common Stock issued in exchange therefor without interest (i) the amount Merger Consideration and the payment of any cash payable in lieu of a any fractional share shares deliverable in respect of Parent such shareholders’ shares of Company Common Stock, as well as any accrued and unpaid dividends or distributions on such Merger Consideration. Notwithstanding the foregoing, none of Parent, the Surviving Company, the Exchange Agent or any other Person shall be liable to any former holder of shares of Company Common Stock for any amount delivered in good faith to which such holder is entitled a public official pursuant to Section 1.10(f) and the amount of dividends applicable abandoned property, escheat or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stocksimilar laws.
(dg) In the event that any Company Stock Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof Person claiming such shares Company Stock Certificate to be lost, stolen or destroyed and the posting by such Person of Parent Common a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate, and in accordance with this ARTICLE I, the Merger Consideration and cash in lieu of any fractional shares, if any, as may be required shares deliverable in respect thereof pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stockapplicable.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (First Mid Bancshares, Inc.), Merger Agreement (First Mid Bancshares, Inc.)
Exchange of Certificates. (a) Prior American Securities Transfer & Trust, Inc. or such other reputable bank or trust company selected by Parent (and reasonably acceptable to the Company) prior to the Closing Date shall act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, (ii) the certificates representing the shares of Parent Preferred Stock issuable pursuant to this Section 1, and (iiiii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common StockStock or Parent Preferred Stock (as the case may be). Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of or Parent Common Preferred Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock or Parent Preferred Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.9(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock) or Parent Preferred Stock (and cash in lieu of any fractional share of Parent Preferred Stock), as the case may be, as contemplated by this Section 1.101. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock or Parent Preferred Stock, require the owner of such lot, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock or Parent Preferred Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment or Parent Preferred Stock which such holder has the right to receive upon surrender thereof until such holder surrenders such Company Stock Certificate in lieu of fractional shares accordance with this Section 1.9 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the date one year anniversary after the Effective Time date on which the Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.9 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and or Parent Preferred Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common or Parent Preferred Stock and any applicable dividends or distributions with respect to Parent Common Stock or Parent Preferred Stock.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock or Company Preferred Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or Company Preferred Stock or to any other Person with respect to any shares of Parent Common Stock or Parent Preferred Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Cypros Pharmaceutical Corp), Merger Agreement (Cypros Pharmaceutical Corp)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository bank or trust institution of recognized standing selected company to be designated by Parent and Acquisition and reasonably satisfactory to the Company Purchaser (the "EXCHANGE AGENTExchange Agent") shall act as exchange agent in effecting the exchange of the Per Share Merger Consideration for Certificates which, prior to the Effective Time, represented Shares entitled to payment pursuant to Section 1.6 hereof. Prior to the Effective Time, the Purchaser shall deposit with the Exchange Agent the aggregate Per Share Merger Consideration necessary to make the payments contemplated hereby on a timely basis (the "Deposit Amount") in trust for the benefit of the holders of Shares for exchange in accordance Certificates. Pending distribution pursuant to this Section 1.9(a) of the Deposit Amount deposited with this Article 1: the Exchange Agent, the Surviving Corporation may direct the Exchange Agent to invest such Deposit Amount, provided that such investments (i) shall be obligations of or guaranteed by the United States of America, in commercial paper obligations receiving the highest rating from either ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., or in certificates representing the appropriate number of shares deposit, bank repurchase agreements or bankers acceptances of Parent Common Stock issuable pursuant to Section 1.8, commercial banks with capital exceeding $500,000,000 (collectively "Permitted Investments") or in money market funds which are invested solely in Permitted Investments and (ii) cash shall have maturities that will not prevent or delay payments to be paid in lieu made pursuant to this Section 1.9(a). Upon the surrender of fractional shares each such Certificate and the issuance and delivery by the Exchange Agent of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), Per Share Merger Consideration in exchange for outstanding therefor, such Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Shares held by the Company or the Purchaser and by Dissenting Shares.
(b) shall represent solely the right to receive the Per Share Merger Consideration, without interest, multiplied by the number of Shares represented by such Certificate. Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of record of a certificate or certificates that Certificates which immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares a form of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss instructions for use in surrendering such Certificates and title to receiving the Certificates shall pass only upon delivery of Per Share Merger Consideration therefor. Upon the Certificates surrender to the Exchange Agent and shall be in of such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a an outstanding Certificate for cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly executed, completed and validly executed in accordance with the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1instructions thereto, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all other documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; providedsuch instructions, howeverthe holder shall receive the Per Share Merger Consideration, without any interest thereon. If any Per Share Merger Consideration is to be paid to a name other than the name in which the Certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition to such payment or exchange that Parent the Person requesting such payment or exchange shall pay to the Exchange Agent mayany transfer or other taxes required by reason of the payment of such Per Share Merger Consideration to a name other than that of the registered holder of the Certificate surrendered, in its discretionor such Person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, require neither the delivery Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Per Share Merger Consideration delivered to a suitable bond public official pursuant to applicable abandoned property, escheat or indemnitysimilar laws.
(eb) All shares The Surviving Corporation shall not be entitled to the return of Parent Common Stock issued upon any amount in the possession of the Exchange Agent relating to the transactions described in this Agreement until the date which is 180 days after the Effective Time. Thereafter, each holder of a Certificate representing a Share may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Per Share Merger Consideration, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(c) At and after the Effective Time, the holders of Certificates to be exchanged for exchange of Shares in accordance with the terms hereof (including any cash paid Per Share Merger Consideration pursuant to Section 1.10(c) or 1.10(f)) this Agreement shall be deemed cease to have been issued any rights as stockholders of the Company except for the right to surrender such holder's Certificates in full satisfaction exchange for payment of all rights pertaining to such Shares the Per Share Merger Consideration, and after the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Company Corporation of the Shares that which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reasonCorporation or the Exchange Agent, they shall be canceled cancelled and exchanged for the Per Share Merger Consideration, as provided in this Article 1I, subject to applicable law in the case of Dissenting Shares.
(fd) No fractions The provisions of a share of Parent Common Stock this Section 1.9 shall be issued in also apply to Dissenting Shares that lose their status as such, except that the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion obligations of the Exchange Fund that remains undistributed to Agent under this Section 1.9 shall commence on the stockholders date of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders loss of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stocksuch status.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Specialty Acquisition Corp), Agreement and Plan of Recapitalization and Merger (Specialty Catalog Corp)
Exchange of Certificates. (a) Prior From time to time following the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENTExchange Agent") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, ; and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), in exchange for outstanding Shares.
(b) Promptly Not later than three (3) business days after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATESCertificates") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock and, if applicable, cash to be paid for fractional shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor issued a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be is entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may and a check representing the amount of consideration payable in lieu of fractional shares shall be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable lawsApplicable Law, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable customary bond or indemnityindemnity reasonably satisfactory to Parent and the Exchange Agent.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares Shares; subject, however, to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the date hereof that remain unpaid at the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Surviving Company Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company Corporation for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, Merger but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average equal to such fractional part of a share of Parent Common Stock Price multiplied by the fractional share interest to which such holder would otherwise be entitledaverage of the last reported sales prices for Parent Common Stock as reported on the Nasdaq National Market on the ten (10) trading days immediately preceding the Effective Time. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the expiration of one (1) year anniversary after the Effective Time shall be delivered to Parent upon demand, demand and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent as general creditors for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of or Parent Common Stock for such shares (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawApplicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Calico Commerce Inc/), Merger Agreement (Connectinc Com Co)
Exchange of Certificates. (a) Prior Parent shall authorize American Stock Transfer & Trust Company or one or more other persons reasonably acceptable to Company to act as Exchange Agent in connection with the First Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver cause the Exchange Agent to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory mail to the Company (the "EXCHANGE AGENT") for the benefit of the former record holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Company Common Stock issuable pursuant to Section 1.8, letters of transmittal and (ii) cash to be paid in lieu of fractional instructions for surrendering their certificates formerly representing shares of Parent Company Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDCertificates"), ) in exchange for outstanding SharesMerger Consideration. The fees and expenses of the Exchange Agent shall be paid by Parent, and Parent shall indemnify Company against actions taken by the Exchange Agent pursuant hereto and pursuant to any Exchange Agent agreement other than for acts or omissions which constitute willful misconduct or gross negligence, pursuant to the agreement with Exchange Agent.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive sufficient shares of Parent Common Stock pursuant to Section 1.8: (i) satisfy Merger Consideration and sufficient cash to satisfy payments for fractional shares. After the Effective Time, upon receipt of Certificates for cancellation, together with a properly completed letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss of, and title to to, the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyAgent) and (ii) other requested documents and in accordance with the instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executedthereon, the holder of such Certificate Certificates shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of Parent Common Stock into which the shares of Company Common Stock theretofore represented 5 by the Certificates so surrendered shall have been converted pursuant to Section 1.6(a)(i) and (ii) a check in the amount of any cash due pursuant to Sections 1.6(b) and 1.13. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.9, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share amounts under Section 1.13. Shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions into which shares of this Article 1, and the Certificate so surrendered Company Common Stock shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered converted in the transfer records of First Merger at the Company, a certificate Effective Time shall be deemed to have been issued at the Effective Time. If any certificates representing the proper number of shares of Parent Common Stock may are to be issued to in a transferee if name other than that in which the Certificate representing surrendered is registered, it shall be a condition of such Shares is presented exchange that the person requesting such exchange deliver to the Exchange Agent accompanied by all documents required necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after reason of the Effective Time to represent only the right to receive upon such surrender the issuance of a certificate representing shares of Parent Common Stock in a name other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Beginning the date which is six months following the Closing Date, Parent shall act as the Exchange Agent and cash in lieu thereafter any holder of an unsurrendered Certificate shall look solely to Parent for any fractional shares amounts to which such holder may be due, subject to applicable law. Notwithstanding any other provisions of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made Agreement, any portion of the Merger Consideration remaining unclaimed five years after the Effective Time with respect to Parent Common Stock with a record (or such earlier date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. Ifsuch time as such amounts would otherwise escheat to, after the Effective Timeor become property of, Certificates are presented any governmental entity) shall, to the Surviving Company for any reasonextent permitted by law, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share become the property of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder free and clear of Shares otherwise any claims or interest of any person previously entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional sharesthereto.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Genzyme Corp)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company designate an exchange agent (the "EXCHANGE AGENT") in connection with the Merger pursuant to an exchange agent agreement providing for, among other things, the matters set forth in this Section 2.4. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the holders of Shares for exchange in accordance with this Article 1: Certificates (as hereinafter defined), (i) certificates representing the appropriate a sufficient number of shares of Parent Common Stock issuable to satisfy Parent's obligations pursuant to Section 1.8, 2.1 and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such cash and certificates for shares of Parent Common Stock and such cash are being hereinafter referred to as the "EXCHANGE FUND"), ) to be issued in exchange for outstanding Sharesshares of Target Common Stock in accordance with the terms of Section 2.4(h). Except as set forth herein, from and after the Effective Time, each holder of a certificate that immediately prior to the Effective Time represented outstanding shares of Target Common Stock ("CERTIFICATE") shall be entitled to receive in exchange therefor, upon surrender thereof to the Exchange Agent, the Per Share Stock Consideration for each share of Target Common Stock so represented by the Certificate surrendered by such holder thereof (less the number of shares of Parent Common Stock deposited in the Escrow applicable to such holder pursuant to Section 2.2), together with any dividends or other distributions as provided in Section 2.4(e). The certificates representing shares of Parent Common Stock issued in exchange for outstanding shares of Target Common Stock shall be properly issued and countersigned and executed and authenticated, as appropriate.
(b) Promptly after the Effective Time, and, in any event, within five (5) business days thereafter, Parent shall cause the Exchange Agent shall to mail to each record holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") Certificate a notice and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates Certificate shall pass pass, only upon proper delivery of the Certificates Certificate to the Exchange Agent and shall be in Agent) advising such form and have such other customary provisions as Parent holder of the effectiveness of the Merger and the Company may reasonably specify) and (ii) instructions for use procedures to be used in effecting the surrender of the Certificates Certificate in exchange for certificates representing shares the Per Share Stock Consideration. Target shall have the right to review both the letter of Parent Common Stocktransmittal and the instructions prior to the Effective Time and provide reasonable comments thereon. Upon surrender of a Certificate for cancellation to the Exchange AgentAgent of a Certificate, together with such letter of transmittal duly executedexecuted and completed in accordance with the instructions thereon, and such other documents as may reasonably be requested, the holder of such Certificate Exchange Agent shall be promptly deliver to the person entitled to receive in exchange therefor thereto (i) a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Target Common Stock that such holder has the right to receive shall have become entitled pursuant to the provisions of this Article 1, and Section 2.1 (less the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may deposited in the Escrow applicable to such holder pursuant to Section 2.2), and (ii) a check in the amount of cash in lieu of fractional shares, if any, which such holder has the right to
(c) If delivery of all or part of the Per Share Stock Consideration is to be issued made to a transferee if person other than the person in whose name a surrendered Certificate is registered, it shall be a condition to such delivery or exchange that the Certificate representing surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such Shares is presented delivery or exchange shall have paid any transfer and other taxes required by reason of such delivery or exchange in a name other than that of the registered holder of the Certificate surrendered or shall have established to the reasonable satisfaction of the Exchange Agent accompanied by all documents required that such tax either has been paid or is not payable.
(d) Subject to evidence Section 2.4(e), until surrendered and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by exchanged in accordance with this Section 1.102.4, each Certificate shall be deemed at any time shall, after the Effective Time to Time, represent only solely the right to receive upon the Per Share Stock Consideration, multiplied by the number of shares of Target Common Stock evidenced by such Certificate, together with any dividends or other distributions as provided in Section 2.4(e), and shall represent no other rights. From and after the Effective Time, Parent and Surviving Corporation shall be entitled to treat such Certificates that have not yet been surrendered for exchange as evidencing the ownership of the aggregate Per Share Stock Consideration into which the shares of Target Common Stock represented by such Certificates may be converted, notwithstanding any failure to surrender such Certificates. Three hundred sixty (360) days following the certificate representing Effective Time, the Exchange Agent shall deliver to the Surviving Corporation any shares of Parent Common Stock and any funds (including any interest received with respect thereto) in the Exchange Fund that have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to Parent (subject to abandoned property, escheat or other similar laws) with respect to the Per Share Stock Consideration, cash in lieu of any fractional shares and unpaid dividends and distributions thereon (as determined in accordance with Section 2.4(e)) deliverable or payable upon due surrender of Parent their Certificates. Neither Exchange Agent nor any party hereto shall be liable to any holder of shares of Target Common Stock as contemplated by this Section 1.10for any Per Share Stock Consideration (or dividends, distributions or interest with respect thereto) delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(ce) No Whenever a dividend or other distribution is declared by Parent on the Parent Common Stock, the record date for which is at or after the Effective Time, the declaration shall include dividends or other distributions on all shares issuable pursuant to this Agreement (without interest thereon), provided that no dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares share(s) of Parent Common Stock represented thereby, thereby unless and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to accordance with this Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock2.
(df) In the event that If any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue deliver in exchange therefor for such lost, stolen or destroyed certificate, upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common in form satisfactory to the Exchange Agent, the Per Share Stock and cash in lieu of fractional shares, if anyConsideration, as may be required pursuant to
(g) Holders of unsurrendered Certificates will not be entitled to this Agreement; provided, however, that vote at any meeting of Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitystockholders.
(eh) All Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) a Certificate or 1.10(f)) Certificates. No dividends or distributions of Parent shall be deemed payable on or with respect to have been issued in full satisfaction any fractional share and any such fractional share interest will not entitle the owner thereof to vote or to any rights of all rights pertaining stockholders of Parent. In lieu of any such fractional shares, holders of Certificates otherwise entitled to such Shares and there fractional shares shall be no further registration of transfers on entitled to receive promptly from the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior Exchange Agent a cash payment in an amount equal to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions fraction of a such share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused entitled multiplied by the issuance Market Price (as defined in Section 8.7). Payments of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shares shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawmade without interest thereon.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or the Company will appoint a depository bank or trust institution of recognized standing company jointly selected by Parent Toreador and Acquisition and reasonably satisfactory ZaZa to act as exchange agent (the “Exchange Agent”). Promptly after the Effective Time, the Company (shall deposit or cause to be deposited with the "EXCHANGE AGENT") Exchange Agent, for the benefit of the holders of Shares shares of Toreador Common Stock, for exchange in accordance with this Article 1: (i) 3, certificates or non-certificated book entries representing the appropriate number of shares of Parent Company Common Stock issuable to be issued pursuant to Section 1.83.01(a) in exchange for outstanding shares of Toreador Common Stock (such certificates, and (ii) whether represented in certificated or non-certificated book-entry form, as applicable, the “Company Certificates”). In addition, the Company shall make available to the Exchange Agent from time to time funds necessary for payments of cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock pursuant to Section 3.02(e) or to pay dividends or distributions pursuant to Section 3.02(c). The Company Certificates and such cash deposited with the Exchange Agent are hereinafter referred to collectively as the "EXCHANGE FUND"), in exchange for outstanding Shares“Exchange Fund.”
(b) Promptly after the Effective Time, the Company shall cause the Exchange Agent shall to mail to each holder of record of a certificate one or more certificates that immediately prior to (such certificates, the Effective Time represented outstanding Shares (the "CERTIFICATES"“Certificates”) and whose shares were converted into the right to receive representing shares of Parent Toreador Common Stock pursuant to Section 1.8: (iother than Excluded Toreador Shares): (A) a letter of transmittal (the “Letter of Transmittal”) which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent Toreador and the Company ZaZa may reasonably specify) specify and (iiB) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares Company Certificates and cash in lieu of Parent Common Stockfractional shares, if any. Upon surrender of a Certificate representing shares of Toreador Common Stock for cancellation to the Exchange Agent, Agent together with such letter a Letter of transmittal Transmittal, duly executedexecuted and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate Company Certificate representing that number of whole shares of Parent Company Common Stock andStock, if applicableas determined by the Toreador Exchange Ratio, a check representing in respect of the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive Certificate surrendered pursuant to the provisions of this Article 13, together with a check for the cash to be paid in lieu of fractional shares, if any, after giving effect to any required withholding Tax, and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on the cash in lieu of fractional shares, if any, payable to holders of Certificates. In the event of a transfer of ownership of Shares that shares of Toreador Common Stock which is not registered in the transfer records of the CompanyToreador, a certificate Certificate representing the proper number of shares of Parent Company Common Stock may Stock, together with a check for the cash to be paid in lieu of fractional shares, if any, shall be issued to a such transferee if the Certificate representing such Shares Toreador Common Stock, is presented to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer and by to evidence that any applicable stock transfer taxes Taxes have been paidpaid or are not payable. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time Promptly after the Effective Time Time, the Company shall cause the Exchange Agent to represent only the right mail to receive upon such surrender the certificate representing each holder of record of shares of Parent Toreador Common Stock and represented by book-entry on the records of Toreador or Toreador’s transfer agent (“Book-Entry Shares”) (other than Excluded Toreador Shares), on behalf of the Company, notice that such holder has become the holder of record of the number of shares of Company Common Stock into which such Book-Entry Shares shall have been converted pursuant to Section 3.01(a)(ii), together with a check for the cash to be paid in lieu of fractional shares, if any, after giving effect to any fractional shares of Parent Common Stock as contemplated by this Section 1.10required withholding Tax.
(c) No Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared or made after the Effective Time with respect to Parent the shares of Company Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Toreador Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to by any such holder pursuant to Section 1.10(f), Certificate until the holder of record of such Certificate shall surrender such Certificateis surrendered for exchange as provided herein. Subject to the effect of applicable lawsApplicable Laws, following surrender of any such Certificate Certificate, there shall be paid to the record holder of the certificates Company Certificates representing whole shares of Parent Company Common Stock issued in exchange therefor therefor, without interest interest, (i) at the time of such surrender, the amount of dividends or other distributions on shares of Company Common Stock with a record date after the Effective Time and theretofore payable with respect to such whole shares of Company Common Stock and not paid, less the amount of any cash payable in lieu of a fractional share of Parent Common Stock to withholding Taxes which such holder is entitled pursuant to Section 1.10(fmay be required thereon, and (ii) and at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender such surrender, payable with respect to such whole shares of Parent Company Common Stock, less the amount of any withholding Taxes which may be required thereon.
(d) In At or after the event that any Certificate for Shares shall have been lostEffective Time, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Toreador Surviving Company Corporation of the Shares shares of Toreador Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Company or Toreador Surviving Company for any reasonCorporation, they the presented Certificates shall be canceled and exchanged as provided for Company Certificates and cash in lieu of fractional shares, if any, deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth in this Article 13.
(fe) No fractions fraction of a share of Parent Company Common Stock shall will be issued in the Mergerissued, but in lieu thereof each holder of Shares otherwise shares of Toreador Common Stock or, any Member entitled to receive a fraction of a share of Parent Company Common Stock shall upon surrender of his or her Certificate or Certificates will be entitled to receive receive, in accordance with the provisions of this Section 3.02(e), from the Exchange Agent or the Company an amount of in cash (without interest) determined equal to the product obtained by multiplying the Average Stock Price by (i) the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment entitled (after taking into account all shares of Toreador Common Stock held at the cash consideration in lieu Effective Time by such holder) by (ii) the closing price of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes share of simplifying Toreador Common Stock on the corporate and accounting complexities that would otherwise be caused by NASDAQ National Market (“NASDAQ”) on the issuance of fractional shareslast full trading day prior to the Effective Time.
(gf) Any portion of the Exchange Fund (including the proceeds of any investments thereof and any shares of Company Common Stock) that remains undistributed to unclaimed by the former stockholders of the Company upon the one year anniversary Toreador twelve months after the Effective Time shall be delivered to Parent upon demand, and any stockholders the Company. Any former stockholder of the Company Toreador who have has not theretofore complied with this Article 1 3 shall thereafter look only to Parent the Company for payment of their shares of Company Common Stock or cash in lieu of fractional shares and unpaid dividends and distributions on Company Common Stock deliverable in respect of each Certificate such former stockholder holds as determined pursuant to this Agreement.
(g) None of the Company, Toreador Surviving Corporation, ZaZa, the Exchange Agent or any other person shall be liable to any former holder of shares of Toreador Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. If any Certificate shall not have been surrendered prior to seven years after the Effective Time (or immediately prior to such earlier date on which any shares of Company Common Stock and any cash payable to the holder of such Certificate pursuant to this Article 3 would otherwise escheat to or become the property of any Governmental Authority (as defined in Section 4.05)), any such shares of Company Common Stock and any such cash shall, to the extent permitted by Applicable Law, become the property of the Company, free and clear of all claims or interest of any person previously entitled thereto.
(h) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by such person of a bond in such reasonable amount as the Company may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for Parent such lost, stolen or destroyed Certificate the shares of Company Common Stock and cash in lieu of fractional shares, as the case may beif any, and any applicable unpaid dividends or and distributions with on shares of Company Common Stock deliverable in respect thereof pursuant to Parent Common Stockthis Agreement.
(hi) Neither Parent nor the Company The Exchange Agent shall be liable to invest any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from included in the Exchange Fund delivered to as directed by the Company on a public official daily basis; provided, that no such investment or loss thereon shall affect the amounts payable in respect of Toreador Common Stock pursuant to Article 2 and as required by any applicable abandoned property, escheat or similar lawthe other provisions of this Article 3. Any interest and other income resulting from such investments shall promptly be paid to the Company.
Appears in 1 contract
Exchange of Certificates. (a) Prior to Within five (5) business days after the Effective Time, as required by subsections (b) and (c) belowClosing, Parent shall deliver will mail to each Company stockholder that does not perfect its transfer agent, or a depository or trust institution of recognized standing selected by Parent dissenters’ rights and Acquisition and reasonably satisfactory is otherwise entitled to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable receive Merger Consideration pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: 1.5 (i) a letter of transmittal in customary form and containing such provisions as Parent deems reasonable (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyParent) and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common StockMerger Consideration. Upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, the (1) each holder of such Company Stock Certificate that does not perfect its dissenters’ rights, if any, pursuant to Section 1.10 shall be entitled to receive in exchange therefor (A) a certificate representing that the Closing Percentage of the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock) and (B) an amount in cash representing the Closing Percentage of the cash that such holder has the right to receive pursuant to the provisions of Section 1.5, (2) Parent shall deliver to the escrow agent under the Escrow Agreement, on behalf and in the name of each such holder, (A) a certificate representing the Escrow Percentage of the number of whole shares of Parent Common Stock that such holder is entitled to receive (together with the Warrant Escrow Shares, the “Escrow Shares”), which Escrow Shares shall include the same proportion of vested and unvested shares of Parent Common Stock as were held by such holder with respect to Company Capital Stock immediately prior to the Effective Time of Merger I, and (B) an amount in cash representing the Escrow Percentage of the cash that such holder has the right to receive (together with the Warrant Escrow Cash, the “Escrow Cash”) and (3) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares Company Common Stock that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock Merger Consideration may be issued to a transferee if the Company Stock Certificate representing such Shares is presented to the Exchange Agent Parent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.9, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of Merger I, to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 1.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect Table of Contents to such Company Stock Certificate. If Parent’s transfer agent requires that a legal opinion be delivered to it in connection with the issuance of shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by accordance with this Section 1.101.9, Parent shall use commercially reasonable efforts to cause such a legal opinion to be delivered to its transfer agent at the Effective Time of Merger I. Parent shall use commercially reasonable efforts to cause its transfer agent or paying agent to deliver the proper portion of the Merger Consideration to each stockholder of the Company entitled to receive Merger Consideration pursuant to the terms of this Agreement as promptly as reasonably practicable after receipt by such transfer agent of the documentation set forth above.
(b) The Escrow Shares and Escrow Cash shall be maintained in escrow funds for the purposes of satisfying claims brought pursuant to Section 10, for the period of time and in accordance with the terms set forth in the Escrow Agreement.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time of Merger I shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder pursuant to Section 1.10(f)holder, until the such holder of record of surrenders such Company Stock Certificate shall surrender or unless such Certificate. Subject Company Stock Certificate is lost or stolen and an affidavit to the such effect of applicable laws, following surrender of any and bond is delivered to Parent in accordance with this Section 1.8 (at which time such Certificate there holder shall be paid entitled to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any receive all such dividends and distributions and such cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockpayment).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such No fractional shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in connection with the MergerMergers, but in and no certificates for any such fractional shares shall be issued. In lieu thereof each of such fractional shares, any holder of Shares Company Capital Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock shall (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of his or her Certificate or Certificates such holder’s Company Stock Certificate(s) in accordance with this Section 1.9, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the Parent Average Stock Price.
(e) Parent and the Surviving Corporation shall be entitled to receive an amount deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of cash (without interest) determined by multiplying Company Capital Stock pursuant to this Agreement such amounts as Parent or the Average Stock Price by Surviving Corporation may be required to deduct or withhold therefrom under the fractional share interest Code or under any provision of state, local or foreign tax law, provided that Parent shall comply with applicable reporting requirements in connection with such withholding. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to which the Person on behalf of whom such holder amounts would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shareshave been paid.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(hf) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares Company Capital Stock for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, required to be delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior As of or prior to the Effective Time, as required by subsections (b) the Exchange Agent and (c) belowpursuant to the Exchange Agent Agreement, the Parent shall deliver to its transfer agent, or must deposit with a depository bank or trust institution of recognized standing selected company designated by the Parent and Acquisition and reasonably satisfactory to the Company Southwest (the "EXCHANGE AGENT") “Exchange Agent”), for the benefit of the holders of shares of Southwest Common Stock (other than Cancelled Shares and Dissenting Shares), for exchange in accordance with this Article 1: (i) II through the Exchange Agent, certificates representing the appropriate evidencing such number of shares of Parent Common Stock issuable to holders of Company Common Stock in the Merger pursuant to Section 1.8, and 2.7 (ii) cash to be paid in lieu of fractional such certificates for shares of Parent Common Stock (such shares of Parent Common Stock and such cash are Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "EXCHANGE FUND"“Exchange Fund”). The Exchange Agent must, pursuant to irrevocable instructions, deliver the Parent Common Stock contemplated to be issued pursuant to Section 2.7 out of the Exchange Fund. Except as contemplated by Section 2.10(g), in exchange the Exchange Fund must not be used for outstanding Sharesany other purpose.
(b) Promptly As promptly as reasonably practicable after the Effective Time, the Parent must cause the Exchange Agent shall to mail to each holder of record of a certificate or certificates that which immediately prior to the Effective Time represented outstanding shares (other than Cancelled Shares and Dissenting Shares) of Southwest Common Stock and of Southwest Preferred Stock (the "CERTIFICATES"“Certificates”) and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall will be in customary form and will specify that delivery shall will be effected effected, and risk of loss and title to the Certificates shall pass will pass, only upon proper delivery of the Certificates to the Exchange Agent and shall will be in such form and have such other customary provisions as the Parent and the Company may Exchange Agent will reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing evidencing shares of Parent Common Stock. Stock (to the extent such Certificates have not already been submitted to the Exchange Agent).
(c) Upon surrender to the Exchange Agent of a Certificate for cancellation to the Exchange Agentcancellation, together with such letter of transmittal transmittal, duly executedexecuted and completed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Exchange Agent pursuant to such instructions, the holder of such Certificate shall will be entitled to receive in exchange therefor therefore a certificate representing that number of whole shares of Parent Common Stock andStock, if applicableany, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, II and the Certificate so surrendered shall forthwith will immediately be canceledcancelled. In the event of a transfer of ownership of Shares that shares of Southwest Common Stock which is not registered in the transfer records of Southwest, the Companyapplicable Merger Consideration, a certificate representing the proper number of shares of Parent Common Stock and any dividend, or other distributions (other than stock dividends) to which such holder is entitled pursuant to Section 2.10(d) may be issued to a transferee if the Certificate representing such Shares shares of Company Common Stock is presented to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.102.10, each Certificate shall will be deemed at any time all times after the Effective Time for all purposes to represent only the right to receive upon such surrender the certificate representing applicable Merger Consideration with respect to the shares of Parent Southwest Common Stock formerly represented thereby and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this dividends or other distributions to which such holder is entitled pursuant to Section 1.102.10(d).
(cd) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall will be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), thereby until the holder of record of such Certificate shall will surrender such Certificate. Subject to the effect of escheat, tax or other applicable laws, following surrender of any such Certificate Certificate, there shall will be paid to the record holder of the stock certificates representing whole shares of Parent Common Stock issued in exchange therefor therefore, without interest interest, (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and promptly, the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such number of whole shares of Parent Common Stock Stock, and (ii) at the appropriate payment date date, the amount of dividends or other distributions (other than stock dividends), with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender occurring after surrender, payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon conversion of the surrender for exchange shares of Shares Southwest Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall will be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and shares of Southwest Common Stock and, following the Effective Time, there shall will be no further registration of transfers on the stock transfer books of the Surviving Company Corporation of the Shares shares of Southwest Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company Corporation for any reason, they shall will be canceled cancelled and exchanged as provided in this Article 1Section 2.10. From and after the Effective Time, holders of Certificates will cease to have any rights as stockholders of Southwest, except as provided by law.
(f) No fractions of a share of Parent Common Stock shall be issued in To the Mergerextent permitted by applicable law, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any any portion of the Exchange Fund that (including any shares of Parent Common Stock) which remains undistributed to the stockholders holders of the Company upon the one year anniversary shares of Southwest Common Stock two years after the Effective Time shall will be delivered to Parent the Parent, upon demand, and any stockholders holders of the Company shares of Southwest Common Stock who have not theretofore complied with this Article 1 shall 2 must thereafter look only to the Parent for payment of their claim for the applicable Merger Consideration, and any dividends or other distribution (other than stock dividends) with respect to the Parent Common Stock and cash in lieu to which they are entitled pursuant to Section 2.10. Any portion of fractional sharesthe Exchange Fund remaining unclaimed by holders of shares of Company Common Stock five years after the Effective Time (or such earlier date, as is immediately prior to such time as such amounts would otherwise escheat to or become property of any government entity) will, to the case may beextent permitted by applicable law, become the property of the Parent free and clear of any applicable dividends claims or distributions with respect to Parent Common Stockinterest of any person previously entitled thereto.
(hg) Neither Notwithstanding any section herein to the contrary, none of the Exchange Agent, the Parent nor the Company shall Surviving Corporation will be liable to any holder of Shares shares of Company Common Stock for any such shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
(h) The Exchange Agent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Southwest Common Stock such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation or the Parent, as the case may be, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the shares of Southwest Common Stock in respect of which such deduction and withholding was made by the Surviving Corporation or the Parent, as the case may be.
(i) If any Certificate will have been lost, stolen or destroyed, the Reorganized Parent may issue a stop transfer order on the records of the Exchange Agent, and upon delivery to the Exchange Agent of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond, in such reasonable amount as the Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration, and any dividends or other distributions (other than stock dividends) to which the holders thereof are entitled pursuant to this Agreement.
(j) No transfer taxes will be payable by any Southwest Shareholder in respect of the issuance of the Parent Common Stock under this Article 2, except that if any Parent Common Stock is to be issued in a name other than that in which the Certificate surrendered has been registered, it will be a condition of such issuance that the person requesting such issuance will pay to the Parent any transfer taxes payable by reason thereof, or of any prior transfer of such surrendered certificate, or establish to the reasonable satisfaction of the Parent that such taxes have been paid or are not payable.
(k) At the close of business on the day of the Effective Time, the stock transfer books of Southwest will be closed and there will be no further registration of transfers of shares of Southwest Common Stock thereafter on the records of Southwest .
Appears in 1 contract
Exchange of Certificates. (a) Prior to 7.2.1 At the Effective Time, as required by subsections shares of Worldprints Common Stock that are outstanding immediately prior thereto (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of other than Dissenting Shares for exchange which dissenters rights have been or will be perfected in accordance with this Article 1: (i) certificates representing applicable law), will, by virtue of the appropriate number of shares of Parent Common Stock issuable pursuant Merger and without further action, cease to Section 1.8exist, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (all such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were will be converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to from Excite@Home the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Excite@Home Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Excite@Home Preferred Stock to which such holder is entitled pursuant to Section 1.10(f2.1.2, subject to the provisions of Section 2.1.4 (regarding the elimination of fractional shares of Excite@Home Common Stock) and Section 2.5 (regarding the amount withholding of dividends Escrow Shares). At the Closing, each holder of shares of Worldprints Common Stock that are outstanding immediately prior thereto (other than Dissenting Shares), will surrender either (i) the certificate(s) for such shares (each a "Worldprints Certificate"), duly endorsed to Excite@Home for cancellation as of the Effective Time, or other distributions with a record date (ii) an affidavit of lost certificate and an indemnity in form and substance reasonably satisfactory to Excite@Home (the "Affidavit"). Promptly after the Effective Time and receipt of such Worldprints Certificate or Affidavit (as the case may be): (a) Excite@Home or its transfer agent will issue to each tendering holder of a Worldprints Certificate or an Affidavit, certificates (a "Tendering Worldprints Holder") for the number of shares of Excite@Home Common Stock and Excite@Home Preferred Stock to which such holder is entitled pursuant to Section 2.1.2, subject to the provisions of Section 2.1.4 (regarding the elimination of fractional shares of Excite@Home Common Stock) and Section 2.5 (regarding the withholding of Escrow Shares); and (b) Excite@Home or its transfer agent will pay by check to each Tendering Worldprints Holder cash in the amounts payable to such holder in accordance with the provisions of Sections 2.1.4.
7.2.2 No dividends or distributions payable to holders of record of Excite@Home Common Stock or Excite@Home Common Stock after the Effective Time will be paid to the holder of any unsurrendered Worldprints Certificate unless and until the holder of such unsurrendered Worldprints Certificate surrenders such Worldprints Certificate or an Affidavit to Excite@Home as provided above. Subject to the effect, if any, of applicable escheat and other laws, following surrender of any Worldprints Certificate or Affidavit, there will be delivered to the person entitled thereto, without interest, the amount of any dividends and distributions theretofore paid with respect to such number of whole shares of Parent Excite@Home Common Stock and (ii) at the appropriate payment Excite@Home Preferred Stock so withheld as of any date the amount of dividends or other distributions with a record date after subsequent to the Effective Time but and prior to surrender and a payment such date subsequent to surrender payable with respect to such whole shares of Parent Common Stockdelivery.
(d) In 7.2.3 After the event that any Certificate for Shares shall have been lostEffective Time, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall will be no further registration of transfers on the stock transfer books of the Surviving Company Worldprints or its transfer agent of the Shares any shares of capital stock of Worldprints that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Worldprints Certificates or an Affidavit are presented to the Surviving Company for any reason, they shall will be canceled and exchanged as provided in this Article 1Section 7.2.
(f) No fractions 7.2.4 Until Worldprints Certificates or an Affidavit representing shares of a share of Parent Worldprints Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled that are outstanding immediately prior to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall are surrendered pursuant to Section 7.2.1 above, such Worldprints Certificates will be delivered deemed, for all purposes, to Parent upon demand, and any stockholders evidence ownership of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment number of their claim for Parent shares of Excite@Home Common Stock and cash in lieu Excite@Home Preferred Stock into which such shares of Worldprints Common Stock will have been converted pursuant to Section 2.1.2, subject to the provisions of Section 2.1.4 (regarding the elimination of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent shares of Excite@Home Common Stock) and Section 2.5 (regarding the withholding of Escrow Shares).
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (At Home Corp)
Exchange of Certificates. (a) Prior to 7.2.1 As of the Effective Time, as required all shares of Lumalite Stock that are outstanding immediately prior thereto will, by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit virtue of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant Merger and without further action, cease to Section 1.8exist, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (all such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were will be converted into the right to receive from ConSil the number of shares of Parent ConSil Common Stock pursuant to as set forth in Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected 1.6.
7.2.2 At and risk of loss and title to after the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates Effective Time, each certificate representing outstanding shares of Parent Lumalite common stock will represent the number of shares of ConSil Common Stock. Upon surrender Stock into which such shares of a Certificate for cancellation to Lumalite common stock have been converted, and such shares of ConSil Common Stock will be deemed registered in the Exchange Agent, together with such letter name of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number certificate. As soon as practicable after the Effective Time, each holder of whole shares of Parent Common Stock and, Lumalite common stock will surrender (a) the certificates for such shares (the "Lumalite Certificates") to ConSil for cancellation or (b) an affidavit of lost certificate (or non-issued certificate) with appropriate indemnification (the "Affidavit") in form reasonably satisfactory to ConSil. Promptly following the Effective Time and receipt of the Lumalite Certificates and/or the Affidavit (or any lost certificate bond required by the transfer agent if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has transfer agent will not accept the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered indemnification in the transfer records Affidavit in lieu of the Companybond), a certificate representing ConSil will cause its transfer agent to issue to such surrendering holder certificate(s) for the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent ConSil Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock1.6.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) 7.2.3 All shares of Parent ConSil Common Stock issued delivered upon the surrender for exchange of Shares Lumalite Certificates in accordance with the terms hereof (including any cash paid pursuant will be delivered to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and the registered holder. After the Effective Time, there shall will be no further registration of transfers of the shares of Lumalite Stock on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeLumalite. If, after the Effective Time, Lumalite Certificates are presented to the Surviving Company for transfer or for any other reason, they shall will be canceled and exchanged as provided in this Article 1and certificates therefor will be delivered.
7.2.4 Until Lumalite Certificates representing Lumalite common stock outstanding prior to the Merger are surrendered pursuant to Section 7.2.2 above, such certificates will be deemed, for all purposes, to evidence ownership of (fa) No fractions the number of a share shares of Parent ConSil Common Stock shall be issued in into which the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and Lumalite common stock will have been converted as required by any applicable abandoned property, escheat or similar lawset forth in Section 1.1.
Appears in 1 contract
Sources: Merger Agreement (Consil Corp)
Exchange of Certificates. (a) Prior to At the Closing (after the Effective Time), as required by subsections each Company Stockholder shall surrender and deliver to the Buyer:
(bi) Certificates representing (i) all of such Company Stockholder's ownership of Common Stock and (cii) below, Parent shall deliver to its transfer agent, or all of such Company Stockholder's ownership of Preferred Stock;
(ii) A properly completed letter of transmittal in a depository or trust institution of recognized standing selected by Parent and Acquisition and form reasonably satisfactory to the Company, the Buyer and the Buyer's transfer agent; and
(iii) In the case of Company (the "EXCHANGE AGENT") for the benefit Stockholders who or which are Affiliates of the holders Company as of Shares for exchange in accordance with this Article 1: the date hereof (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash which Company Stockholders are hereinafter referred to as the "EXCHANGE FUND"listed on Schedule 2 hereto), in exchange for outstanding Sharesa duly executed Company Affiliate Agreement (as defined herein).
(b) Promptly At the Closing (after the Effective Time), the Buyer shall (i) deliver (or cause to be delivered) to each Company Stockholder a certificate representing a number of whole shares of Buyer Common Stock equal to (x) the sum of the number of shares of Common Stock held by such Company Stockholder immediately prior to the Effective Time multiplied by the Common Stock Exchange Ratio, plus the number of shares of Series A Preferred Stock held by such Company Stockholder immediately prior to the Effective Time multiplied by the Series A Exchange Ratio, plus the number of shares of Series B Preferred Stock held by such Company Stockholder immediately prior to the Effective Time multiplied by the Series B Exchange Ratio, plus the number of shares of Series C Preferred Stock held by such Company Stockholder immediately prior to the Effective Time multiplied by the Series C Exchange Ratio, plus the number of shares of Series D Preferred Stock held by such Company Stockholder immediately prior to the Effective Time multiplied by the Series D Exchange Ratio, (y) less a number of whole shares of Buyer Common Stock equal to such Company Stockholder's Ownership Percentage Interest (as set forth on the Closing Stockholder Schedule) in the Escrow Shares and (ii) deposit (or cause to be deposited) in escrow on behalf of such Company Stockholder a number of shares of Buyer Common Stock equal to such Company Stockholder's Ownership Percentage Interest (as set forth on the Closing Stockholder Schedule) in the Escrow Shares, to be held and released in accordance with an escrow agreement among the Buyer, the Stockholder Representative (as defined in Section 8.6) and State Street Bank and Trust Company, Inc. or such other escrow agent as the Parties shall mutually agree (the "Escrow Agent") substantially in the form of Exhibit D hereto (the "Escrow Agreement"), which shares shall be included in and represented by the single certificate for the Escrow Shares which shall be delivered to the Escrow Agent in accordance with the Escrow Agreement.
(c) If any certificate(s) representing Common Stock or Preferred Stock held by a Company Stockholder immediately prior to the Effective Time are not surrendered at the Closing as provided in Section 2.3(a), after the Effective Time, the Exchange Agent shall mail Buyer will deliver (or cause to each holder be delivered) to such Stockholder the certificate representing Buyer Common Stock referred to in clause (i) of record of a certificate or certificates that immediately prior Section 2.3(b) at such time as such Company Stockholder surrenders and delivers to the Effective Time represented outstanding Shares (the "CERTIFICATES"Buyer such certificate(s) and whose shares were converted into the right other documents required to receive shares of Parent Common Stock be surrendered and delivered pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.102.3(a).
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, As soon as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly practicable after the Effective Time, the Exchange Agent shall mail Parent will send to each holder of record the registered holders of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: (i) Certificates a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, Parent shall deliver to the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to Section 1.5, provided that the provisions of this Article 1, and certificates representing Parent Common Stock to be delivered to the Certificate so surrendered shall forthwith be canceled. In the event holder of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of Company Stock Certificate represent only whole shares of Parent Common Stock may and in lieu of any fractional shares to which such holder would otherwise be issued to a transferee if entitled, the holder of such Company Stock Certificate representing such Shares is presented shall be paid in cash an amount equal to the Exchange Agent accompanied sum of the dollar amount (rounded to the nearest whole cent) determined by multiplying the Average Trading Price by the fraction of a share of Parent Common Stock that would otherwise be deliverable to such holder. In the event two or more Company Stock Certificates represent shares of Company Common Stock by any single holder, all documents required calculations respecting the number of shares and amount of cash to evidence and effect be delivered to such transfer and holder shall be made based on the aggregate number of shares represented by evidence that any applicable stock transfer taxes have been paidsuch Company Stock Certificates. All Company Stock Certificates so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.101.8, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the Merger Consideration in accordance with this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the issuance of any certificate representing shares of Parent Common Stock and or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any fractional shares of claim that may be made against Parent Common or the Surviving Corporation with respect to such Company Stock as contemplated by this Section 1.10Certificate.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to Section 1.10(f)this Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, until local or foreign tax law. To the holder of record of extent such Certificate shall surrender amounts are so deducted or withheld, such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there amounts shall be treated for all purposes under this Agreement as having been paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock Person to which whom such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockamounts would otherwise have been paid.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Maxim Pharmaceuticals Inc)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that which immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Tarpon Common Stock pursuant to Section 1.8: (i) Stock, a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificate or certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Buyer Common Stock and, if applicable, and a check representing the amount of cash consideration to into which the Tarpon Common Stock held by such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive was converted pursuant to the provisions terms of Article I of this Article 1Agreement. If any certificate for shares of Buyer Common Stock, and or any check representing cash and/or declared but unpaid dividends, is to be issued in a name other than that in which a certificate surrendered for exchange is issued, the Certificate certificate so surrendered shall forthwith be canceled. In properly endorsed and otherwise in proper form for transfer and the event person requesting such exchange shall affix any requisite stock transfer tax stamps to the certificate surrendered or provide funds for their purchase or establish to the satisfaction of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect that such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10are not payable.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent All Buyer Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued paid upon the surrender for exchange of Shares certificates for Tarpon Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) of this Agreement shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Tarpon Common Stock theretofore represented by such Shares and there shall be no further registration of transfers on the stock transfer books of certificates, subject, however, to the Surviving Company of the Shares that were outstanding immediately Corporation’s obligation to pay any dividends or make any other distributions, otherwise permitted under this Agreement, with a record date prior to the Effective Time which may have been declared or made by Tarpon on such Tarpon Common Stock which remains unpaid at the Effective Time. If, after the Effective Time, Certificates certificates representing Tarpon Common Stock are presented to the Surviving Company Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the MergerAgreement, but in lieu thereof each holder of Shares except as otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined provided by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior The parties to this Agreement agree: (i) that Computershare Trust Company, NA shall serve, pursuant to the terms of an exchange agent agreement mutually acceptable to the parties, as the exchange agent for purposes of this Agreement (the “Exchange Agent”); and (ii) to execute and deliver the exchange agent agreement at or prior to the Effective Time. First Defiance shall be solely responsible for the payment of any fees and expenses of the Exchange Agent.
(b) At or prior to the Effective Time, as required by subsections (b) First Defiance shall authorize the issuance of and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory make available to the Company (the "EXCHANGE AGENT") Exchange Agent, for the benefit of the holders of Shares United Community Common Stock for exchange in accordance with this Article 12: (i) certificates representing the appropriate a sufficient number of shares of Parent First Defiance Common Stock issuable for payment of the Merger Consideration pursuant to Section 1.82.1, and (ii) sufficient cash to be paid for payment of cash in lieu of any fractional shares of Parent First Defiance Common Stock (such in accordance with Section 2.3. Such amount of cash and shares of Parent First Defiance Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND")Stock, in exchange for outstanding Shares.
(b) Promptly together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to in this Article 2 as the “Conversion Fund.”
(c) As promptly as practicable following the Effective Time (and in any event within five (5) Business Days after the Closing Date), First Defiance shall cause the Exchange Agent shall to mail to each holder of record of a certificate one or more certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive representing shares of Parent United Community Common Stock pursuant to Section 1.8: (i“United Community Stock Certificates”) a letter of transmittal (“Letter of Transmittal”), in a form to be agreed by the parties, which shall specify specifies, among other things, that delivery shall be effected effected, and risk of loss and title to the United Community Stock Certificates shall pass pass, only upon delivery of the Certificates such certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) Agent, together with instructions for use in effecting the surrender of the United Community Stock Certificates in exchange for certificates representing shares of Parent Common Stock. pursuant to this Agreement.
(d) Upon proper surrender of a United Community Stock Certificate for cancellation exchange to the Exchange Agent, together with such letter a properly completed and duly executed Letter of transmittal duly executedTransmittal, the holder of such United Community Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock andhis, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and her or its Merger Consideration plus cash in lieu of any fractional shares of Parent First Defiance Common Stock as contemplated in accordance with Section 2.3 deliverable in respect of the shares of United Community Common Stock represented by this Section 1.10such United Community Stock Certificate; thereupon such United Community Stock Certificate shall forthwith be cancelled. No interest will be paid or accrued on any portion of the Merger Consideration deliverable upon surrender of a United Community Stock Certificate.
(ce) After the Effective Time, there shall be no transfers on the stock transfer books of United Community of Outstanding United Community Shares.
(f) No dividends or other distributions declared or made after the Effective Time with respect to Parent First Defiance Common Stock with a and payable to the holders of record date thereof after the Effective Time shall be paid to the holder of any unsurrendered United Community Stock Certificate until the holder thereof shall surrender such United Community Stock Certificate in accordance with this Article 2. Promptly after the surrender of a United Community Stock Certificate in accordance with this Article 2, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of First Defiance Common Stock into which the shares of Parent United Community Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any by such holder United Community Stock Certificate were converted at the Effective Time pursuant to Section 1.10(f)2.1. No holder of an unsurrendered United Community Stock Certificate shall be entitled, until the holder of record surrender of such Certificate United Community Stock Certificate, to vote the shares of First Defiance Common Stock into which such holder’s United Community Common Stock shall surrender such Certificate. Subject to have been converted.
(g) Any portion of the effect Conversion Fund that remains unclaimed by the shareholders of applicable laws, following surrender of any such Certificate there United Community twelve (12) months after the Effective Time shall be paid to the record holder Surviving Entity, or its successors in interest. Any shareholders of United Community who have not theretofore complied with this Article 2 shall thereafter look only to the certificates representing whole shares Surviving Entity, or its successors in interest, for issuance of Parent First Defiance Common Stock issued in exchange therefor without interest (i) pursuant to the amount Merger Consideration and the payment of any cash payable in lieu of a any fractional share shares deliverable in respect of Parent such shareholders’ shares of United Community Common Stock, as well as any accrued and unpaid dividends or distributions on shares of such First Defiance Common Stock. Notwithstanding the foregoing, none of the Surviving Entity, the Exchange Agent or any other person shall be liable to any former holder of shares of United Community Common Stock for any amount delivered in good faith to which such holder is entitled a public official pursuant to Section 1.10(f) and the amount of dividends applicable abandoned property, escheat or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stocksimilar laws.
(dh) In the event that any United Community Stock Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof person claiming such United Community Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such person of a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such United Community Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed United Community Stock Certificate, and in accordance with this Article 2, shares of Parent First Defiance Common Stock pursuant to the Merger Consideration and cash in lieu of any fractional shares, if any, as may be required shares deliverable in respect thereof pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(ei) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after between the date of this Agreement and the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions outstanding shares of a share of Parent First Defiance Common Stock shall have been changed into a different number or kind of shares or securities or into a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, reorganization, split, combination or exchange of shares, or there shall be issued in any extraordinary dividend or distribution, the Merger, but in lieu thereof each holder Merger Consideration shall be adjusted appropriately to provide the holders of Shares otherwise entitled to a fraction of a share of Parent United Community Common Stock shall upon surrender of his or her Certificate or Certificates be entitled the same economic effect as contemplated by this Agreement prior to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge event; provided that payment of the cash consideration nothing contained in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time this sentence shall be delivered construed or permit First Defiance to Parent upon demand, and take any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions action with respect to Parent Common Stockits securities or otherwise that is prohibited by the terms of this Agreement.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to Within five (5) business days after the Effective Time, as required by subsections (b) and (c) belowClosing, Parent shall deliver will mail to each Company stockholder that does not perfect its transfer agent, or a depository or trust institution of recognized standing selected by Parent dissenters’ rights and Acquisition and reasonably satisfactory is otherwise entitled to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable receive Merger Consideration pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: 1.5 (i) a letter of transmittal in customary form and containing such provisions as Parent deems reasonable (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyParent) and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common StockMerger Consideration. Upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, the (1) each holder of such Company Stock Certificate that does not perfect its dissenters’ rights, if any, pursuant to Section 1.10 shall be entitled to receive in exchange therefor (A) a certificate representing that the Closing Percentage of the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock) and (B) an amount in cash representing the Closing Percentage of the cash that such holder has the right to receive pursuant to the provisions of Section 1.5, (2) Parent shall deliver to the escrow agent under the Escrow Agreement, on behalf and in the name of each such holder, (A) a certificate representing the Escrow Percentage of the number of whole shares of Parent Common Stock that such holder is entitled to receive (together with the Warrant Escrow Shares, the “Escrow Shares”), which Escrow Shares shall include the same proportion of vested and unvested shares of Parent Common Stock as were held by such holder with respect to Company Capital Stock immediately prior to the Effective Time of Merger I, and (B) an amount in cash representing the Escrow Percentage of the cash that such holder has the right to receive (together with the Warrant Escrow Cash, the “Escrow Cash”) and (3) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares Company Common Stock that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock Merger Consideration may be issued to a transferee if the Company Stock Certificate representing such Shares is presented to the Exchange Agent Parent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.9, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of Merger I, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock Merger Consideration as contemplated by this Section 1.101.5. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect 13. Table of Contents
(b) The Escrow Shares and Escrow Cash shall be maintained in escrow funds for the purposes of satisfying claims brought pursuant to Section 10, for the period of time and in accordance with the terms set forth in the Escrow Agreement.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time of Merger I shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder pursuant to Section 1.10(f)holder, until the such holder of record of surrenders such Company Stock Certificate shall surrender or unless such Certificate. Subject Company Stock Certificate is lost or stolen and an affidavit to the such effect of applicable laws, following surrender of any and bond is delivered to Parent in accordance with this Section 1.8 (at which time such Certificate there holder shall be paid entitled to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any receive all such dividends and distributions and such cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockpayment).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such No fractional shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in connection with the MergerMergers, but in and no certificates for any such fractional shares shall be issued. In lieu thereof each of such fractional shares, any holder of Shares Company Capital Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock shall (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of his or her Certificate or Certificates such holder’s Company Stock Certificate(s) in accordance with this Section 1.9, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the Parent Average Stock Price.
(e) Parent and the Surviving Corporation shall be entitled to receive an amount deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of cash (without interest) determined by multiplying Company Capital Stock pursuant to this Agreement such amounts as Parent or the Average Stock Price by Surviving Corporation may be required to deduct or withhold therefrom under the fractional share interest Code or under any provision of state, local or foreign tax law, provided that Parent shall comply with applicable reporting requirements in connection with such withholding. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to which the Person on behalf of whom such holder amounts would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shareshave been paid.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(hf) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares Company Capital Stock for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, required to be delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT"“Exchange Agent”) for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"“Exchange Fund”), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES"“Certificates”) and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.to
Appears in 1 contract
Sources: Merger Agreement (K2 Inc)
Exchange of Certificates. (a) Prior to the time of the mailing of the Joint Proxy Statement/Prospectus to holders of record of shares of Company Common Stock entitled to vote at the Company Shareholders Meeting, Parent shall appoint its transfer agent to act as the exchange agent in the Merger (the "Exchange Agent"). As soon as practicable after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Exchange Agent certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.8, and (ii) cash to be paid in lieu of fractional 1. The shares of Parent Common Stock (so deposited with the Exchange Agent, together with dividends or distributions, if any, received by the Exchange Agent with respect to such shares of Parent Common Stock and such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the such Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5 and (2) the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.8(b), each Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender shares of Parent Common Stock. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Certificate.
(c) Notwithstanding anything to the contrary contained in this Agreement, no shares of Parent Common Stock (or certificates therefor) shall be issued in exchange for any Certificate to any Person who may be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company until such Person shall have delivered to Parent and cash in lieu of any fractional shares of Parent Common Stock the Company a duly executed Affiliate Agreement as contemplated by this Section 1.105.8.
(cd) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityinterest).
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Certificates as of the Company upon date 60 days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent (or Parent's transfer agent) upon demand, and any stockholders holders of the Company Certificates who have not theretofore complied surrendered their Certificates in accordance with this Article 1 Section 1.8 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and cash in lieu of fractional shares, as the case may beStock, and any applicable dividends or distributions with respect to Parent Common Stock.
(hf) Neither Each of the Exchange Agent and Parent nor and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) The Parent shall not be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund thereto delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior Gold Banc, on behalf of Acquisition Subsidiary, shall make available to the Effective TimeAmerican Stock Transfer and Trust Company, Inc., which is hereby designated as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company exchange agent (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Agent"), in exchange for outstanding Shares.
(b) Promptly at and after the Effective Time, such number of shares of Gold Banc Common Stock as shall be issuable to the holders of Company Common Stock in accordance with SECTION 2.7 hereof. As soon as practicable after the Closing Date, Gold Banc, on behalf of the Exchange Agent Agents, shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time Closing Date represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Company Common Stock pursuant to Section 1.8: (i) a form letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of certificates of Company Common Stock for exchange into certificates of Gold Banc Common Stock. The Gold Banc Common Stock into which the Certificates Company Common Stock is being converted in exchange for accordance with SECTION 2.7(B) hereof shall be delivered to each stockholder of the Company as set forth in a letter of transmittal.
(b) Notwithstanding any other provision herein, no fractional shares of Gold Banc Common Stock and no certificates or scrip therefor or other evidence of ownership thereof will be issued. All fractional shares of Gold Banc Common Stock to which a holder of Company Common Stock would otherwise be entitled to under SECTION 2.7 hereof shall be aggregated. If a fractional share results from such aggregation, such stockholder shall be entitled, after the Effective Time and upon the surrender of such stockholder's certificate or certificates representing shares of Parent Company Common Stock, to receive from the Exchange Agent an amount in cash in lieu of such fractional share equal to the product of such fraction and the Average Gold Banc Stock Price. Upon surrender Gold Banc, 423985 v7 9 on behalf of a Certificate for cancellation Acquisition Subsidiary, shall make available to the Exchange Agent, together with such letter of transmittal duly executedas required from time to time, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stocknecessary for this purpose.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Union Bankshares LTD)
Exchange of Certificates. (a) Prior to 6.2.1 As of the Effective Time, as required all shares of Target Stock that are outstanding immediately prior thereto will, by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit virtue of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant Merger and without further action, cease to Section 1.8exist, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (all such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were will be converted into the right to receive from Acquirer the number of shares of Parent Acquirer Common Stock pursuant as set forth in Section 1.1, subject to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected Sections 1.2 and risk of loss 1.3 hereof.
6.2.2 At and title to after the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates Effective Time, each certificate representing outstanding shares of Parent Target Stock will represent the number of shares of Acquirer Common Stock. Upon surrender Stock into which such shares of a Certificate for cancellation to Target Stock have been converted, and such shares of Acquirer Common Stock will be deemed registered in the Exchange Agent, together with such letter name of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number certificate. As soon as practicable after the Effective Time, each holder of whole shares of Parent Common Target Stock andwill surrender (a) the certificates for such shares (the "Target Certificates") to Acquirer for cancellation or (b) an affidavit of lost certificate (or non-issued certificate) with appropriate indemnification (the "Affidavit") in form reasonably satisfactory to Acquirer. Promptly following the Effective Time and receipt of the Target Certificates and/or the Affidavit (or any lost certificate bond, if applicablenecessary), a check representing Acquirer will issue to such surrendering holder certificate(s) for the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Acquirer Common Stock to which such holder is entitled pursuant to Section 1.10(f) 1.1, subject to Section 1.2 hereof, less such holder's pro rata portion of the Escrow Shares deposited into escrow pursuant to Section 1.3 hereof, and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole any cash payable under Section 1.2.
6.2.3 All cash and shares of Parent Acquirer Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued delivered upon the surrender for exchange of Shares Target Certificates in accordance with the terms hereof (including any cash paid pursuant will be delivered to Section 1.10(c) the registered holder or 1.10(f)) shall be deemed to have been issued placed in full satisfaction of all rights pertaining to such Shares and escrow with the Escrow Agent, as applicable. After the Effective Time, there shall will be no further registration of transfers of the shares of Target Stock on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeTarget. If, after the Effective Time, Target Certificates are presented to the Surviving Company for transfer or for any other reason, they shall will be canceled and exchanged and certificates and cash therefor will be delivered or placed in escrow as provided in this Article 1Section 6.2.
6.2.4 Until Target Certificates representing Target Stock outstanding prior to the Merger are surrendered pursuant to Section 6.2.2 above, such certificates will be deemed, for all purposes, to evidence ownership of (fa) No fractions the number of a share shares of Parent Acquirer Common Stock shall be issued into which the shares of Target Stock will have been converted as set forth in the MergerSection 1.1, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed subject to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered obligation to Parent upon demandplace a portion thereof in escrow as required hereby, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash as set forth in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common StockSection 1.2 hereof.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Neoforma Com Inc)
Exchange of Certificates. (a) Prior From time to time following the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENTExchange Agent") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, ; and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), in exchange for outstanding Shares.
(b) Promptly Not later than three (3) business days after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATESCertificates") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock and, if applicable, cash to be paid for fractional shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor issued a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be is entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may and a check representing the amount of consideration payable in lieu of fractional shares shall be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable lawsApplicable Law, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.an
Appears in 1 contract
Sources: Merger Agreement (Peoplesoft Inc)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT"“Exchange Agent”) for the benefit of the holders of Shares for exchange in accordance with this Article 12: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, 2.8 and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"“Exchange Fund”), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES"“Certificates”) and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.82.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 12, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.102.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.102.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f2.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f2.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.such
Appears in 1 contract
Sources: Merger Agreement (K2 Inc)
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). As soon as practicable after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) Notwithstanding anything to the contrary contained in this Agreement, no shares of Parent Common Stock (or certificates therefor) shall be issued in exchange for any Company Stock Certificate to any Person who may be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company until such Person shall have delivered to Parent and the Company a duly executed Affiliate Agreement as contemplated by this Section 1.105.10.
(cd) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityinterest).
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon date 180 calendar days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(hf) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(g) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Specialized Health Products International Inc)
Exchange of Certificates. (a) Prior to At the Effective Time, as required by subsections (b) and (c) belowClosing, Parent shall deliver to deposit with its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") agent for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Equity Holders, certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant and, if after the Effective Time, if applicable, any cash, dividends or other distributions with respect to Section 1.8, and (ii) cash Parent Common Stock to be issued or paid in connection with Section 1.5(a) (including cash in lieu of fractional shares of Parent Common Stock. Each Equity Holder shall have the right to allocate Parent Common Stock (such shares issuable hereunder into one or more certificates of Parent Common Stock and such cash are hereinafter referred upon reasonable advance written request to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Parent prior to issuance. Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior Parent will send to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares holders of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify (including any specified representations and warranties), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of unregistered Parent Common StockStock bearing Parent's standard Securities Act of 1933 legend and a lockup legend in substantially the following forms: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF A LOCKUP AGREEMENT BETWEEN THE REGISTERED HOLDER HEREOF AND THE COMPANY, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. Upon surrender of a Company Stock Certificate to Parent's transfer agent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.8, (ii) the cash payment to which the holder of such Company Stock Certificate is entitled pursuant to Section 1.8(b) and (iii) any unpaid dividends and other distributions and cash in lieu of any fractional shares pursuant to Section 1.8(b) below; and the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.8, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the a certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock Stock) and the aforementioned cash payment as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common 1.8. If any Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.have
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Lightspan Inc)
Exchange of Certificates. (a) Prior At or prior to the Effective Time, as required by subsections (b) and (c) below, Parent BFC shall deliver to its transfer agentdeposit, or a depository shall cause to be deposited, with American Stock Transfer and Trust Company, or such other bank or trust institution of recognized standing selected company designated by Parent BFC and Acquisition and who is reasonably satisfactory to the Company Bluegreen (the "EXCHANGE AGENT"“Exchange Agent”) for the benefit of the holders of Shares certificates representing the shares of Bluegreen Common Stock (“Bluegreen Stock Certificates”) for exchange in accordance with this Article 1: (i) III through the Exchange Agent, certificates representing the appropriate number of shares of Parent BFC Class A Common Stock (“BFC Stock Certificates”) issuable pursuant to Section 1.8, and (ii3.1(c) cash to be paid in lieu of fractional shares of Parent Common Stock above (such shares of Parent Common BFC Stock and such cash are Certificates, together with any dividends or distributions with respect thereto (without any interest thereon), being hereinafter referred to as the "EXCHANGE FUND"), in exchange “Exchange Fund”) to be exchanged pursuant to this Article III for outstanding SharesBluegreen Stock Certificates. The Exchange Fund shall not be used for any other purpose.
(b) Promptly Promptly, but in any event no later than three (3) Business Days after the Effective Time, BFC will instruct the Exchange Agent shall to mail to each holder of record of a certificate Bluegreen Common Stock who has not previously surrendered his, her or certificates that immediately prior to the Effective Time represented outstanding Shares its Bluegreen Stock Certificates (the "CERTIFICATES") and whose shares were converted into the right to receive other than holders of any shares of Parent Bluegreen Common Stock cancelled pursuant to Section 1.8: 3.1(b) or holders of Dissenting Shares) (i) a letter of transmittal reasonably acceptable to Bluegreen (which shall specify that delivery shall be effected effected, and risk of loss and title to the such holder’s Bluegreen Stock Certificates shall pass pass, only upon proper delivery of the Bluegreen Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent to which BFC and the Company Bluegreen may reasonably specify) agree); and (ii) instructions reasonably acceptable to Bluegreen for use in effecting the surrender of the Bluegreen Stock Certificates in exchange for certificates representing shares BFC Stock Certificates in accordance with this Article III (collectively, the “Letter of Parent Common Stock. Upon Transmittal”).
(c) From and after the Effective Time and upon the surrender of a Bluegreen Stock Certificate for cancellation (or affidavits and indemnification regarding the loss or destruction of such certificates reasonably acceptable to BFC and the Exchange Agent) to the Exchange Agent, Agent together with such letter the Letter of transmittal Transmittal, duly executed, and such other customary documents as may be required pursuant thereto, the holder of such Bluegreen Stock Certificate shall be entitled to receive in exchange therefor a certificate therefor, and the Exchange Agent shall deliver in accordance with the Letter of Transmittal, BFC Stock Certificates representing that number of whole shares of Parent BFC Class A Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to in respect of the provisions shares of this Article 1Bluegreen Common Stock formerly evidenced by such Bluegreen Stock Certificate in accordance with Section 3.1 (the “Merger Consideration”), and the Bluegreen Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that shares of Bluegreen Common Stock which is not registered in the transfer records of the CompanyBluegreen, a certificate representing evidencing the proper number of shares of Parent BFC Class A Common Stock may be issued in accordance with this Article III to a transferee if the Bluegreen Stock Certificate representing evidencing such Shares shares is presented to the Exchange Agent Agent, accompanied by all documents reasonably required to evidence and effect such transfer and by evidence reasonably acceptable to BFC and the Exchange Agent that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.103.2, each Bluegreen Stock Certificate (other than those representing shares of Bluegreen Common Stock cancelled pursuant to Section 3.1(b) or Dissenting Shares) shall be deemed at any time after the Effective Time to represent evidence only the right to receive upon such surrender the certificate representing shares of Parent Common Stock Merger Consideration and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made paid thereon after the Effective Time with respect to Parent Time.
(d) All shares of BFC Class A Common Stock issued upon the surrender for exchange of Bluegreen Stock Certificates in accordance with a record the terms of this Article III shall be deemed to have been issued and paid, respectively, in full satisfaction of all rights pertaining to the shares of Bluegreen Common Stock theretofore represented by such Bluegreen Stock Certificates.
(e) Any portion of the Exchange Fund which remains undistributed to the holders of the Bluegreen Stock Certificates upon the date that is nine (9) months after the Effective Time shall be paid delivered by the Exchange Agent to the holder BFC, and any holders of any unsurrendered Certificate with respect to the Bluegreen Stock Certificates (other than holders of shares of Parent Bluegreen Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder cancelled pursuant to Section 1.10(f)3.1(b) and holders of Dissenting Shares) who have not theretofore complied with this Article III shall thereafter look only to BFC for the Merger Consideration.
(f) None of BFC, until Bluegreen, Merger Sub or the holder Exchange Agent shall be liable to any Person in respect of record any shares of such BFC Class A Common Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Bluegreen Stock Certificate shall surrender such Certificate. Subject not have been surrendered prior to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest date that is seven (i7) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date years after the Effective Time theretofore paid with respect (or immediately prior to such number earlier date on which any Merger Consideration would otherwise escheat to, or become the property of, any Governmental Entity), any such Merger Consideration shall, to the extent permitted by applicable Law, become the property of whole shares BFC, free and clear of Parent Common Stock and (ii) at the appropriate payment date the amount all claims or interest of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockany person previously entitled thereto.
(dg) In the event that If any Bluegreen Stock Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an a customary affidavit of that fact by the holder thereof Person claiming such shares of Parent Common Bluegreen Stock and cash in lieu of fractional sharesCertificate to be lost, stolen or destroyed and, if anyrequested by BFC, the posting by such Person of a bond in such reasonable amount as BFC may direct as indemnity against any claim that may be required made with respect to such Bluegreen Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Bluegreen Stock Certificate the Merger Consideration pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityArticle III.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Bluegreen Corp)
Exchange of Certificates. On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (a) Prior to the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUND"), in exchange for outstanding SharesExchange Fund.
(b) Promptly " As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate. Notwithstanding anything to the contrary contained in this Agreement, no shares of Parent Common Stock (or certificates therefor) shall be issued in exchange for any Company Stock Certificate to any Person who may be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company until such Person shall have delivered to Parent a duly executed Affiliate Agreement as contemplated by this Section 1.10.
(c) 5.10. No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (all such dividends and distributions, without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled). The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon date 180 days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(h) . Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Etec Systems Inc)
Exchange of Certificates. (a) Prior to 6.2.1 As of the Effective Time, as required all shares of CFI Common Stock that are outstanding immediately prior thereto will, by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit virtue of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant Merger and without further action, cease to Section 1.8exist, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (all such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were will be converted into the right to receive from Prism the number of shares of Parent Prism Common Stock pursuant and cash determined as set forth in Section 1.1, subject to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected 1.2 hereof.
6.2.2 At and risk of loss and title to after the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates Effective Time, each certificate representing outstanding shares of Parent CFI Common Stock. Upon surrender Stock will represent the number of a Certificate for cancellation to shares of Prism Common Stock into which such shares of CFI Common Stock have been converted, and such shares of Prism Common Stock will be deemed registered in the Exchange Agent, together with such letter name of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number certificate. As soon as practicable after the Effective Time, each holder of whole shares of Parent CFI Common Stock and, if applicable, will surrender (a) the certificates for such shares (the "CFI Certificates") to Prism for cancellation or (b) an affidavit of lost certificate (or nonissued) and a check representing bond in form reasonably satisfactory to Prism (a "Bond"). Promptly following the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Effective Time and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records receipt of the CompanyCFI Certificates and/or the Bonds, a certificate representing Prism will cause its transfer agent to issue to such surrendering holder certificate(s) for the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Prism Common Stock to which such holder is entitled pursuant to Section 1.10(f) 1.1, subject to Section 1.2 hereof, less the Escrow Shares deposited into escrow pursuant to Section 1.3 hereof, and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole Prism will distribute any cash payable under Section 1.2.
6.2.3 All shares of Parent Prism Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lostand, stolen or destroyedif applicable, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued delivered upon the surrender for exchange of Shares CFI Certificates in accordance with the terms hereof (including any cash paid pursuant will be delivered to Section 1.10(c) the registered holder or 1.10(f)) shall be deemed to have been issued placed in full satisfaction of all rights pertaining to such Shares and escrow with the Escrow Agent, as applicable. After the Effective Time, there shall will be no further registration of transfers of the shares of CFI Common Stock on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeCFI. If, after the Effective Time, CFI Certificates are presented to the Surviving Company for transfer or for any other reason, they shall will be canceled and exchanged and certificates therefor will be delivered or placed in escrow as provided in this Article 1Section 6.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its select Corporate Stock Transfer, Inc., Parent’s transfer agent, or a depository another bank or trust institution of recognized standing selected by Parent and Acquisition and company reasonably satisfactory to Parent and the Company, to act as exchange agent in the Merger (the “Exchange Agent”) and shall enter into an agreement reasonably acceptable to the Parent and the Company (with the "EXCHANGE AGENT") for Exchange Agent relating to the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash services to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as performed by the "EXCHANGE FUND"), in exchange for outstanding SharesExchange Agent.
(b) Promptly after the Effective Time, Parent shall cause the Exchange Agent shall to mail to each holder the Persons who were record holders of record valid certificates previously representing any shares of a certificate or certificates that Company Stock outstanding immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common each a “Company Stock pursuant to Section 1.8: Certificate”): (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and the Company shall reasonably approve prior to the Effective Time (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent); and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executed, and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate one or more certificates representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to Section 1.5 (or in lieu of such certificate(s), confirmation of the provisions issuance of this Article 1, such Parent Stock via book entry in the books of the Exchange Agent); and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.8(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive a portion of the Aggregate Merger Consideration as set forth in Section 1.5. In any matters relating to Company Stock Certificates, Parent and the Exchange Agent may rely conclusively upon the record of stockholders maintained by the Company containing the names and addresses of the holders of record of Company Stock at the Effective Time, except to the extent such surrender names or addresses are modified by any stockholders in their respective letters of transmittal. Parent shall not be obligated to deliver stock certificates (if any) representing Aggregate Merger Consideration to which any former holder of Company Stock is entitled until such holder surrenders the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10appropriate documentation required hereunder.
(c) No dividends Shares of Parent Stock issued in the Merger will not be transferable except (i) pursuant to an effective registration statement under the Securities Act or other distributions declared or made after (ii) upon receipt by Parent of a written opinion of counsel for the Effective Time with respect holder reasonably satisfactory to Parent Common Stock with a record date after to the Effective Time effect that the proposed transfer is exempt from the registration requirements of the Securities Act and relevant state securities Legal Requirements. Restrictive legends shall be paid to placed on all certificates (if any) or book entries of the holder of any unsurrendered Certificate with respect to the Parent’s transfer agent, representing shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest the Merger, substantially as follows: NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (iA) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER AND ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS (SUCH FEDERAL AND STATE LAWS, THE “SECURITIES LAWS”) OR (B) IF THE CORPORATION HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL FOR THE HOLDER, WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF THE SECURITIES LAWS. Except as otherwise provided by applicable Legal Requirements, the amount failure of any cash payable in lieu of a fractional share of stock certificate representing Parent Common Stock to which such holder is entitled pursuant to contain a legend in substantially the form set forth above shall not affect the enforceability of restrictions set forth in this Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock1.8(c).
(d) In the event that If any Company Stock Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretionreasonable discretion and as a condition to the issuance of any certificate representing Parent Common Stock, require the delivery owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a suitable bond (in such sum as Parent and the Exchange Agent reasonably agree to direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or indemnitythe Surviving Corporation with respect to such Company Stock Certificate.
(e) All Any holders of Company Stock Certificates who have not previously surrendered their Company Stock Certificates in accordance with this Section 1.8 shall thereafter look only to Parent, and not Exchange Agent, for, and be entitled to receive from Parent, satisfaction of their claims for Parent Stock, and any dividends or distributions with respect to such shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1Stock.
(f) No fractions Each of a share of the Exchange Agent, Parent Common Stock and the Surviving Corporation shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of cash Company Common Stock such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign Tax Legal Requirement or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and timely paid over to the appropriate Governmental Body, (without interesti) determined by multiplying such amounts shall be treated for all purposes under this Agreement as having been paid to the Average Stock Price by the fractional share interest Person to which whom such holder amounts would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for considerationhave been paid, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(gii) Any portion of Parent, the Exchange Fund that remains undistributed to Agent or the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional sharesSurviving Corporation, as the case may be, and any shall promptly deliver the amounts so deducted or withheld to the applicable dividends Taxing or distributions with respect to Parent Common Stockother Governmental Body.
(hg) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty Legal Requirement, escheat Legal Requirement or other similar lawLegal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) At and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a ------------------------ certificate or certificates that immediately prior to the Effective Time represented representing outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent SecureIT Common Stock pursuant to Section 1.8: (i) a letter will represent the number of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent VeriSign Common Stock. Upon surrender Stock into which such shares of a Certificate for cancellation to SecureIT Common Stock have been converted, and such shares of VeriSign Common Stock will be deemed registered in the Exchange Agent, together with such letter name of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number certificate. As soon as practicable after the Effective Time, each holder of whole shares of Parent SecureIT Common Stock and, if applicable, will surrender (a) the certificates for such shares (the "SecureIT Certificates") to VeriSign for cancellation or (b) an affidavit of ---------------------- lost certificate (or nonissued) and a check representing bond in form reasonably satisfactory to VeriSign or its transfer agent (a "Bond"). Promptly following the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Effective ---- Time and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records receipt of the CompanySecureIT Certificates and/or the Bonds, a certificate representing VeriSign will cause its transfer agent to issue to such surrendering holder certificate(s) for the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent VeriSign Common Stock to which such holder is entitled pursuant to Section 1.10(f) 1.1.1, subject to Section 1.1.3 hereof, less the shares of VeriSign Common Stock deposited into escrow pursuant to Section 1.2 hereof, and VeriSign or its transfer agent will pay by check to each tendering holder cash in lieu of fractional shares in the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect payable to such number of whole holder under Section 1.1.
1.3.1 All shares of Parent VeriSign Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lostand, stolen or destroyedif applicable, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued delivered upon the surrender for exchange of Shares SecureIT Certificates in accordance with the terms hereof (including any cash paid pursuant will be delivered to Section 1.10(c) the registered holder or 1.10(f)) shall be deemed to have been issued placed in full satisfaction of all rights pertaining to such Shares and escrow with the Escrow Agent, as applicable. After the Effective Time, there shall will be no further registration of transfers of the shares of SecureIT Common Stock on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeSecureIT. If, after the Effective Time, SecureIT Certificates are presented to the Surviving Company for transfer or for any other reason, they shall will be canceled and exchanged and certificates therefor will be delivered or placed in escrow as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed Section 1.2 Notwithstanding anything herein to the stockholders of contrary, except to the Company upon the one year anniversary extent waived by VeriSign, any SecureIT Certificate that is not properly submitted to VeriSign for exchange and cancellation within three years after the Effective Time shall be delivered no longer evidence ownership of or any right to Parent upon demand, and any stockholders receive shares of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent VeriSign Common Stock and all rights of the holder of such SecureIT Certificate, with respect to the shares previously evidenced by such SecureIT Certificate, shall cease.
1.3.2 Until SecureIT Certificates representing SecureIT Common Stock outstanding prior to the Merger are surrendered pursuant to Section 1.3 above, such certificates will be deemed, for all purposes, to evidence ownership of (a) the number of shares of VeriSign Common Stock into which the shares of SecureIT Common Stock will have been converted, subject to the obligation to place a portion thereof in escrow as required hereby, and (b) if applicable, cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Verisign Inc/Ca)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit, or shall cause to be deposited, with a depository bank or trust institution of recognized standing company selected by Parent and Acquisition and reasonably satisfactory to Parent, which may be the Company Parent's transfer agent (the "EXCHANGE AGENTExchange Agent") ), for the benefit of the -------------- holders of Shares Certificates, for exchange in accordance with this Article 1: Section 1.10, (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.81.8 hereof (as reduced on a pro rata basis by the number of shares of Parent Common Stock placed in escrow pursuant to Section 1.12 hereof) in exchange for the outstanding shares of the Company Capital Stock, the Warrants and the Options and (ii) cash sufficient to be paid in lieu of meet Parent's obligations under Section 1.8 with respect to the Senior Stock and fractional shares of Parent Common Stock (such shares of Parent Common Stock cash and such cash are hereinafter certificates being referred to herein as the "EXCHANGE FUNDExchange Fund"), in exchange for outstanding Shares.. -------------
(b) Promptly As soon as practicable after the Effective Time, and in no event later than five business days thereafter, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) Certificate a form letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates Certificate shall pass pass, only upon delivery of the Certificates Certificate to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Certificates Certificate in exchange for certificates representing (i) the number of shares of Parent Common Stock and (ii) the amount of cash representing payment for any shares of Senior Stock represented by such Certificate and the payment for fractional shares pursuant to Section 1.8 hereof, which, together constitute the Merger Consideration into which the shares of the Company Capital Stock, Warrant or Option represented by such Certificate shall have been converted pursuant to this Agreement. Upon surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article Section 1.8 hereof (as reduced on a pro rata basis by the number of shares of Parent Common Stock placed in escrow pursuant to Section 1.12 hereof) and (y) a check representing the amount of cash (1) for any shares of Senior Stock represented by such Certificate and (2) in lieu of any fractional share interest, if any, in accordance with Section 1.8 hereof, and the Certificate so surrendered shall forthwith be canceled. In No interest will be paid or accrued to or for the event benefit of a transfer holders of ownership of Shares that is not registered in Certificates on the transfer records of cash representing the Company, a Merger Consideration.
(c) If any certificate representing the proper number of shares of Parent Common Stock may is to be issued to in a transferee if name other than that in which the Certificate representing surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such Shares is presented exchange shall pay to the Exchange Agent accompanied in advance any transfer or other taxes required by all documents reason of the issuance of a certificate representing shares of Parent Common Stock in any name other than that of the registered holder of the Certificate surrendered, or required for any other reason, or shall establish to evidence and effect the reasonable satisfaction of the Exchange Agent that such transfer and by evidence that any applicable stock transfer taxes have tax has been paidpaid or is not payable. Until surrendered as contemplated by this Section 1.10Section, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares Merger Consideration. Any fractional share checks which a holder of Parent Common Company Capital Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be entitled to receive in exchange for a Certificate will be delivered to such stockholder only upon delivery of the Certificate to the Exchange Agent. No interest will be paid or accrued on any such fractional share checks to which the holder of any unsurrendered Certificate with respect to the such shares of Parent Common Company Capital Stock represented thereby, and no cash payment in lieu of fractional shares shall may be paid entitled to any receive upon such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockdelivery.
(d) In After the event that any Certificate for Shares shall have been lost, stolen or destroyedEffective Time, the Exchange Agent shall issue in exchange therefor upon stock transfer books of the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) Company shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that shares of the Company Capital Stock, the Warrants or the Options which were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates representing such shares of the Company Capital Stock, the Warrants or the Options are presented for transfer to the Surviving Company for any reasonExchange Agent, they shall be canceled and exchanged as provided in for the Merger Consideration into which the shares of the Company Capital Stock, the Warrants or the Options represented by such Certificates shall have been converted pursuant to this Article 1Agreement.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(ge) Any portion of the Exchange Fund that remains undistributed to unclaimed by the stockholders of the Company upon the one year anniversary for nine months after the Effective Time shall be delivered paid to Parent upon demand, and any Parent. Any stockholders of the Company who have not theretofore complied with this Article 1 Section 1.10 shall thereafter look only to Parent for payment delivery of their claim for Parent Common Stock and cash the Merger Consideration deliverable in lieu respect of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor each share of the Company Capital Stock, Warrants or Options that such stockholder holds as determined pursuant to this Agreement, without any interest thereon. Notwithstanding the foregoing, none of the Parent, the Company, the Exchange Agent nor any other person shall be liable to any former holder of Shares for shares of Parent Common the Company Capital Stock (or dividends of Warrants or distributions with respect thereto) or cash from the Exchange Fund Options for any amount properly delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawlaws.
(f) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Exchange Agent, upon the posting by such person of a bond in such amount as Parent or the Exchange Agent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration deliverable in respect thereof pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Mac-Gray Corp)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall select and enter into an agreement with a reputable bank or trust company that will act as paying agent in the Merger (the “Paying Agent”). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver cause to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory be deposited with the Paying Agent cash sufficient to the Company (the "EXCHANGE AGENT") for the benefit make payments of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable cash consideration payable pursuant to Section 1.8, and 1.5 (ii) cash to the “Payment Fund”). The Payment Fund shall not be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to used for any other purpose. The Payment Fund shall be invested by the Payment Agent as the "EXCHANGE FUND"), in exchange for outstanding Sharesdirected by Parent.
(b) Promptly after the Effective Time, the Exchange Paying Agent shall will mail to each holder the Persons who were record holders of record of a certificate or certificates that Company Stock Certificates immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and as are reasonably acceptable to the Company (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and that risk of loss of, and title to the to, Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Paying Agent); and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common StockMerger Consideration. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentPaying Agent for exchange, together with such a duly executed letter of transmittal duly executed, and such other documents as may be reasonably required by the Paying Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5, in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Company Stock Certificate; and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is any shares of Company Common Stock which are not registered in the transfer records of the Company, payment of Merger Consideration may be made to a certificate Person other than the holder in whose name the Company Stock Certificate formerly representing such shares is registered if (1) any such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and (2) such holder shall have paid any fiduciary or surety bonds and any transfer or other similar Taxes required by reason of the proper number payment of shares such Merger Consideration to a Person other than such holder (or shall have established to the reasonable satisfaction of Parent Common Stock may be issued to a transferee if the Certificate representing that such Shares is presented to the Exchange Agent accompanied by all documents required to evidence bonds and effect such transfer and by evidence that any applicable stock transfer taxes Taxes have been paidpaid or are not applicable). Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock Merger Consideration as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common 1.5. If any Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretiondiscretion and as a condition precedent to the delivery of any Merger Consideration with respect to the shares of Company Common Stock previously represented by such Company Stock Certificate, require the delivery owner of such lost, stolen or destroyed Company Stock Certificate to provide a suitable reasonably appropriate affidavit and to deliver a bond (in such reasonable sum as Parent may direct) as indemnity against any claim that may be made against the Paying Agent, Parent, Merger Sub or indemnitythe Surviving Corporation with respect to such Company Stock Certificate. No interest shall be paid or will accrue on any cash payable to holders of Company Stock Certificates pursuant to the provisions of this Section 1.7.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(gc) Any portion of the Exchange Payment Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the date that is one year anniversary after the Effective Time date on which the Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common StockMerger Consideration.
(hd) Neither Parent nor Each of the Paying Agent, Parent, Merger Sub and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder or former holder of Company Common Stock or any Company Equity Award such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and are remitted to the applicable Taxing Authorities on a timely basis, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) If any Company Stock Certificate has not been surrendered by the earlier of: (i) the fifth anniversary of the date on which the Merger becomes effective; or (ii) the date immediately prior to the date on which the cash amount that such Company Stock Certificate represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such cash amount shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
(f) None of Parent, Merger Sub, the Surviving Corporation and the Paying Agent shall be liable to any holder or former holder of Shares for shares of Parent Company Common Stock (or dividends or distributions to any other Person with respect thereto) or cash from the Exchange Fund to any Merger Consideration delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
(g) The Surviving Corporation or Parent shall bear and pay all charges and expenses of the Paying Agent incurred in connection with the payment of Merger Consideration.
Appears in 1 contract
Exchange of Certificates. Within five (a5) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly business days after the Effective Time, NEWCO shall take all steps necessary to cause the Exchange Agent shall to mail to each holder of record a Certificate or Certificates, a form letter of a certificate or certificates that immediately prior transmittal for return to the Effective Time represented outstanding Shares (Exchange Agent and instructions for use in effecting the "CERTIFICATES") and whose shares were converted into surrender of the right to receive Certificates for, as the case may be, certificates representing the shares of Parent NEWCO Common Stock pursuant to Section 1.8: (i) a Stock, cash in respect of the Cash Election Price, and cash in respect of the Fractional Share Price. The letter of transmittal (which shall be subject to the reasonable approval of Alliance) shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common StockAgent. Upon proper surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with such a properly completed letter of transmittal transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor therefor, as applicable, (i) a certificate representing that number of whole shares of Parent NEWCO Common Stock andto which such former holder of Alliance Common Stock shall have become entitled pursuant to the provisions of Section 3.1.2 hereof, (ii) a check representing that amount of cash (if applicableany) to which such former holder of Alliance Common Stock shall have become entitled in respect of the Cash Election Price pursuant to the provisions of Section 3.2 hereof, and (iii) a check representing the amount of cash consideration to (if any) payable in respect of the Fractional Share Price, which such holder may be entitled on account of a fractional share of Parent Common Stock that such former holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article 1Section 3, and the Certificate so surrendered shall forthwith be canceledcancelled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall interest will be paid to or accrued on the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender . Certificates surrendered for exchange by any person who is an “affiliate” of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off Alliance for purposes of simplifying Rule 145(c) under the corporate and accounting complexities that would otherwise Securities Act shall not be caused by the issuance exchanged for certificates representing shares of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent NEWCO Common Stock and cash in lieu until NEWCO has received the written agreement of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stocksuch person contemplated by Section 8.5 hereof.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Alliance Bancorp of New England Inc)
Exchange of Certificates. (a) Prior As soon as practicable prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall will deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon At the Closing or thereafter, upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by Parent, Parent shall (i) deliver to the registered holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions Section 1.5 less such holder's Pro Rata Escrow Shares (as defined in clause (ii) of this Article 1sentence) and less such holder's Pro Rata Adjustment Shares (as defined in clause (iii) of this sentence), and (ii) deliver to the Certificate so surrendered shall forthwith be canceled. In Escrow Agent (as defined below) under the event Escrow Agreement (as defined below) on behalf of such holder a transfer of ownership of Shares that is not registered certificate in the transfer records name of the Company, a certificate Escrow Agent representing the proper that number of shares of Parent Common Stock equal to the product of (A) that number of Merger Shares equal to the quotient of (1) $4,200,000 divided by (2) the Parent Average Trading Price (the "Escrow Shares") and (B) the quotient of (1) the total number of shares of Company Common Stock held by such holder immediately prior to the Effective Time, divided by (2) the total number of shares of Company Common Stock outstanding immediately prior to the Effective Time (the "Pro Rata Escrow Shares"), and (iii) deliver to the Escrow Agent under the Escrow Agreement on behalf of such holder a certificate in the name of the Escrow Agent representing that number of shares of Parent Common Stock equal to the product of (A) that number of Merger Shares equal to the quotient of (1) $1,100,000 divided by (2) the Parent Average Trading Price (the "Adjustment Shares") and (B) the quotient of (1) the total number of shares of Company Common Stock held by such holder immediately prior to the Effective Time, divided by (2) the total number of shares of Company Common Stock outstanding immediately prior to the Effective Time (the "Pro Rata Adjustment Shares") provided that the certificates representing Parent Common Stock to be delivered to the holder of a Company Stock Certificate under clause (i) above and to the Escrow Agent under clauses (ii) and (iii) above shall, in each case, represent only whole shares of Parent Common Stock. In lieu of any fractional shares to which such holder would otherwise be entitled, after combining any fractional interests of such holder into as many whole shares as is possible, the holder of such Company Stock Certificate shall be paid in cash an amount equal to the sum of (1) the dollar amount (rounded to the nearest whole cent) determined by multiplying the Parent Average Trading Price by the fraction of a share of Parent Common Stock that would otherwise be deliverable to such holder under clause (i) above, (2) the dollar amount (rounded to the nearest whole cent) determined by multiplying the Parent Average Trading Price by the fraction of a share of Parent Common Stock that would otherwise be deliverable to the Escrow Agent under clause (ii) above and (3) the dollar amount (rounded to the nearest whole cent) determined by multiplying the Parent Average Trading Price by the fraction of the share of Parent Common Stock that would otherwise be deliverable to such holder under clause (iii) above. Notwithstanding the foregoing, Parent may be issued deliver to a transferee if the Certificate Escrow Agent two certificates representing the total number of Escrow Shares and Adjustment Shares, respectively, pursuant to this Section 1.8(a) in lieu of issuing separate certificates representing such holder's Pro Rata Escrow Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paidor Pro Rata Adjustment Shares. All Company Stock Certificates so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.101.8, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the Merger Consideration in accordance with this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing shares of Parent Common Stock and or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any fractional shares of claim that may be made against Parent Common or the Surviving Corporation with respect to such Company Stock as contemplated by this Section 1.10Certificate.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder, until such holder surrenders such Company Stock Certificate in accordance with this Section 1.8 (at which time such holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to Section 1.10(f)this Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, until local or foreign tax law. To the holder of record of extent such Certificate shall surrender amounts are so deducted or withheld, such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there amounts shall be treated for all purposes under this Agreement as having been paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock Person to which whom such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockamounts would otherwise have been paid.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Exchange of Certificates. (a) Prior to the Effective Time, As soon as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly practicable after the Effective Time, the Exchange Escrow Agent shall mail send to each holder of record the registered holders of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such provisions as Parent may reasonably specify, (ii) such other customary provisions documents as Parent and the Company may reasonably specify) be required including, without limitation, a Form W-9, and (iiiii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Certificate for cancellation Company Stock Certificate(s) to the Exchange AgentEscrow Agent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as are customarily required, the Escrow Agent shall deliver to the holder of such Certificate shall be entitled to receive in exchange therefor Company Stock Certificate(s): (i) a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records Section 1.5(ii)(A) of the CompanyMerger Agreement, and/or (ii) a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented check equal to the Exchange Agent accompanied by all documents required applicable portion of the Cash Consideration to evidence and effect which such transfer and by evidence holder is entitled; provided that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated to which such holder may be entitled shall be rounded up and any certificates representing Parent Common Stock to be delivered to the holder of a Company Stock Certificate(s) represent only whole shares of Parent Common Stock. In the event two or more Company Stock Certificates represent shares of Company Common Stock and Company Preferred Stock held by this Section 1.10.
(c) any single holder, all calculations respecting the number of shares and amount of cash to be delivered to such holder shall be made based on the aggregate number of shares represented by such Company Stock Certificates. All Company Stock Certificates surrendered to the Escrow Agent for exchange shall be cancelled. No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any thereby until such holder pursuant to Section 1.10(f), until the holder of record of surrenders such Company Stock Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books 1.9 of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they Merger Agreement (at which time such holder shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying all such dividends and distributions). In the Average Stock Price interim, such dividends and distributions will be held by the fractional share interest to which Escrow Agent in trust for such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for considerationholders, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders extent such dividends and distributions consist of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demandcash, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stockan interest-bearing account.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Escrow Agreement (MIGENIX Inc.)
Exchange of Certificates. (a) Prior From time to time following the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENTExchange Agent") for the benefit of the holders of Shares for exchange in accordance with this Article 1I: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATESCertificates") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, I and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; providedPROVIDED, howeverHOWEVER, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares Shares; SUBJECT, HOWEVER, to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the date hereof that remain unpaid at the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Surviving Company Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company Corporation for any reason, they shall be canceled and exchanged as provided in this Article 1.I.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, Merger but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average average closing price for Parent Common Stock Price as reported on the NYSE Composite Transactions reporting system for the five (5) business days prior to the Effective Time by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary expiration of twelve (12) months after the Effective Time shall be delivered to Parent upon demand, demand and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, shares as the case may be, be and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of or Parent Common Stock as the case may be for such shares (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior On or prior to the Closing Date, Parent shall select a bank or trust company to act as exchange agent in the Merger (the “Exchange Agent”). From time to time after the Effective Time, as required to effect the deliveries contemplated by subsections Section 1.7(b), (bi) and (c) below, Parent shall deliver make available to its transfer agentthe Exchange Agent certificates representing Parent Subordinate Voting Shares issuable pursuant to this Section 1, (ii) Parent, or a depository or trust institution wholly owned subsidiary of recognized standing selected by Parent and Acquisition and reasonably satisfactory Parent, shall make available to the Company (Exchange Agent cash sufficient to fund the "EXCHANGE AGENT") for the benefit of the cash consideration payable to holders of Shares for exchange Series A Preferred and Series B Preferred in accordance with this Article 1: (iSections 1.5(a)(v),1.5(a)(vi) certificates representing and, if and to the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8extent applicable, 1.5(a)(viii), and (iiiii) Parent, or a wholly owned subsidiary of Parent, shall make available to the Exchange Agent cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock in accordance with Section 1.5(c) and such cash are hereinafter referred to as the "EXCHANGE FUND"dividend and distribution payments in accordance with Section 1.7(c), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable and in any event within ten (10) days after the Effective Time, Parent shall cause the Exchange Agent shall to mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for (x) certificates representing shares Parent Subordinate Voting Shares in the case of Company Common Stock and Series A Preferred and Series B Preferred with respect to which a valid Stock Election was made and cash in the amount that a holder of Series B Preferred Shares has the right to receive if such holder has made a valid Stock Election and there has not been an election made to pay the Optional Make Whole Payment in Parent Common StockSubordinate Shares and (y) cash in the case of Series A Preferred and Series B Preferred with respect to which a valid Stock Election was not made. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (x) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor (1) a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which Subordinate Voting Shares that such holder may be entitled on account has the right to receive, (2) in the case of a fractional share of Parent Common Stock Series A Preferred and Series B Preferred, cash in the amount that such holder has the right to receive pursuant if such holder has not made a valid Stock Election, or in the case of Series B Preferred Shares, cash in the amount that such holder has the right to receive if such holder has made a valid Stock Election and there has not been an election made to pay the provisions Optional Make Whole Payment in Parent Subordinate Voting Shares, (3) cash in lieu of this Article 1any fractional Parent Subordinate Voting Share and (4) any cash payable in accordance with Section 1.7(d), and (y) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender (1) Parent Subordinate Voting Shares in the certificate representing shares case of Parent Company Common Stock and Series A Preferred and Series B Preferred with respect to which a valid Stock Election was made and cash in the amount that a holder of Series B Preferred Shares has the right to receive if such holder has made a valid Stock Election and there has not been an election made to pay the Optional Make Whole Payment in Parent Subordinate Shares, (2) cash in the case of Series A Preferred and Series B Preferred with respect to which a valid Stock Election was not made, (3) cash in lieu of any fractional shares of Parent Common Stock Subordinate Voting Share as contemplated by this Section 1.101 and (4) any cash payable in accordance with Section 1.7(d). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Subordinate Voting Shares and/or cash, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(c) If any Person who is an “affiliate” (as that term is used in Rule 145 under the Securities Act) of the Company has not delivered to Parent and the Company a duly executed Affiliate Agreement as contemplated by Section 5.10, then, with respect to Parent Subordinate Voting Shares issuable to such Person pursuant to the Merger, Parent may affix a legend to any certificate representing such shares describing the transfer restrictions of Rule 145 and issue related “stop transfer” instructions with respect thereto.
(d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock Subordinate Voting Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any Subordinate Voting Shares that such holder pursuant has the right to receive in connection with the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate1.7. Subject to the effect of applicable laws, following Following surrender of any such Certificate Company Stock Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest such holder, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock Subordinate Voting Share to which such holder is entitled pursuant to Section 1.10(f1.5(c) and the proportionate amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock Subordinate Voting Shares, and (ii) at the appropriate payment date date, the proportionate amount of any dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitySubordinate Voting Shares.
(e) All shares Each of the Exchange Agent, Parent Common Stock issued upon and the surrender for exchange of Shares in accordance with the terms hereof (including Surviving Corporation shall be entitled to deduct and withhold from any cash paid consideration payable or otherwise deliverable pursuant to Section 1.10(c) this Agreement to any holder or 1.10(f)) former holder of Company Common Stock, Series A Preferred or Series B Preferred such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be deemed treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1paid.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Company Common Stock, Series A Preferred or Series B Preferred or to any other Person with respect to any Parent Subordinate Voting Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior On or prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash shall cause to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such deposited, with the Exchange Agent the Closing Consideration. The cash are hereinafter deposited with the Exchange Agent is referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares“Payment Fund.”
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal in customary form (which shall specify that delivery shall be effected and risk a “Letter of Transmittal”), to each Company Stockholder (other than the Company Stockholders who have already tendered their Company Stock Certificates (or, in each case, an affidavit of loss as described below) and title to a Letter of Transmittal and a Form W-9 or Form W-8, as the Certificates shall pass only upon delivery of the Certificates case may be, to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and at or prior to the Company may reasonably specifyClosing pursuant to Section 2.5(c) and (ii) below), together with instructions for use in effecting the surrender exchange of Company Stock Certificates for the Certificates in exchange for certificates representing shares of Parent applicable consideration payable pursuant to Section 2.1 with respect to Company Common Stock. Upon surrender of a Certificate for cancellation the Company Stockholder’s delivery to the Exchange Agent, of a Company Stock Certificate (or an affidavit of loss as described below), together with a duly executed Letter of Transmittal and a Form W-9 or Form W-8, as the case may be, Parent shall cause the Exchange Agent to (i) promptly pay to such letter of transmittal duly executed, Company Stockholder the holder of amount such Certificate shall be Company Stockholder is entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to Section 2.1(c)(i), (ii) upon receipt of any Escrow Funds, promptly pay to such Company Stockholder the provisions amount of this Article 1Escrow Funds such holder is entitled to receive pursuant to Section 2.1(c)(ii); and (iii) upon receipt of any Milestone Merger Consideration, and promptly pay to such Company Stockholder the amount of Milestone Merger Consideration such holder is entitled to receive pursuant to Section 2.1(c)(iii). The Company Stock Certificate so surrendered shall forthwith be canceled. In From and after the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10Effective Time, each Company Stock Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon the Merger Consideration payable pursuant to Section 2.1(c), and the holder of each such surrender Company Stock Certificate shall cease to have any rights with respect to the certificate representing shares of Parent Company Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10formerly represented thereby.
(c) No dividends The Company may, at its discretion, permit some or other distributions declared all of the Company Stockholders to submit their respective Company Stock Certificates (or made after an affidavit of loss as described below), together with a duly executed Letter of Transmittal and a Form W-9 or Form W-8, as the case may be, to the Exchange Agent at or prior to the Closing. The Company and Parent shall agree on the form of Letter of Transmittal as soon as practicable prior to the Closing. With respect to each such Company Stockholder that submits its respective Company Stock Certificates (or an affidavit of loss as described below), together with a duly executed Letter of Transmittal and a Form W-9 or Form W-8, as the case may be, (including wiring instructions), to the Exchange Agent prior to the date that is three (3) business days prior to the Closing (to be held in escrow until the Effective Time), Parent shall use commercially reasonable efforts to cause the Exchange Agent to make the payments to which such Company Stockholder is entitled to at the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until 2.1 by wire transfer on (or on the holder of record of such Certificate shall surrender such Certificate. Subject to business day immediately following) the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder date of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common StockTime.
(d) In Parent, the event that any Certificate for Shares shall have been lostSurviving Corporation and, stolen or destroyedif applicable, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock be entitled to deduct and cash in lieu of fractional shares, if any, as may be required withhold from any Merger Consideration payable or otherwise deliverable to any Company Stockholder pursuant to Section 2.1 or any other section of this Agreement; provided, however, that Agreement such amounts as Parent or the Exchange Agent maySurviving Corporation are required to deduct or withhold therefrom under the Code or under any Tax law. To the extent such amounts are so deducted or withheld, in its discretion, require such amounts shall be treated for all purposes under this Agreement as having been paid to the delivery of a suitable bond or indemnityPerson to whom such amounts would otherwise have been paid.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including If applicable, any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Payment Fund that remains undistributed by the Exchange Agent to the stockholders Company Stockholders as of the Company upon date that is 180 days after the one year anniversary Closing Date, any portion of the Effective Time Milestone Merger Consideration that remains undistributed as of the date that is 180 days after the deposit of the Milestone Merger Consideration, or any portion of the Escrow Fund that remains undistributed as of the date that is 180 days after the expiration of the Escrow Claim Period (or such later date provided for in accordance with Section 3.2 of the Escrow Agreement due to any unresolved claims that are outstanding as of the expiration of the Escrow Claim Period), as the case may be, shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 2.5 shall thereafter look only to Parent for satisfaction of their claims for the Merger Consideration payable pursuant to Section 2.1(c).
(f) If payment of their claim for Parent Merger Consideration in respect of shares of Company Common Stock converted pursuant to Section 2.1(c) is to be made to a Person other than the Person in whose name a surrendered Company Stock Certificate is registered, it shall be a condition to such payment that the Company Stock Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and cash that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of such payment in lieu a name other than that of fractional sharesthe registered holder of the Company Stock Certificate surrendered or shall have established to the reasonable satisfaction of Parent that such Tax either has been paid or is not payable.
(g) In the event any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the case may bepayment of any consideration payable pursuant to Section 2.1(c), and any applicable dividends or distributions with respect to the Company Common Stock previously represented by such Company Stock Certificate, require the Person claiming such Company Stock Certificate to be lost, stolen or destroyed to provide an appropriate affidavit and to, if reasonably requested by Parent, deliver a bond (in such sum as Parent Common Stockmay reasonably direct) as indemnity against any claim that may be made against it, the Surviving Corporation or the Exchange Agent with respect to such Company Stock Certificate.
(h) Neither Notwithstanding anything in this Agreement to the contrary, none of the Exchange Agent, Parent nor or the Company Surviving Corporation shall be liable to any holder of Shares a Company Stock Certificate or to any other Person for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered any amount paid to a public official pursuant to and as required by any applicable abandoned propertyproperty laws, escheat law or similar lawLegal Requirement. Any portion of the Payment Fund remaining unclaimed by holders of Company Stock Certificates three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Body), any portion of any Milestone Merger Consideration remaining unclaimed by holders of Company Common Stock Certificates three years after the date the Milestone Merger Consideration is deposited with the Exchange Agent (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Body), and any portion of the Escrow Fund that remains undistributed three years after the deposit by the Escrow Agent of such amount with the Exchange Agent (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Body) shall, to the extent permitted by applicable Legal Requirements, become the property of Parent.
Appears in 1 contract
Sources: Merger Agreement (Volcano CORP)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, each Shareholder shall deliver to Parent the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares representing its shares of Company Common Stock (the each, a "CERTIFICATESCertificate") in form sufficient for transfer and whose shares were converted into the right to receive shares of Parent Common Stock cancellation pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stockhereto. Upon surrender of a Certificate for cancellation to Parent in form sufficient for transfer and cancellation pursuant hereto and delivery to Parent of such other documents as may reasonably be required by Parent to effect the Exchange Agenttransfer, together with such letter of transmittal duly executed, the holder of each Shareholder surrendering such Certificate shall be entitled to receive in exchange therefor (i) a certificate representing evidencing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive in respect of the shares of Company Common Stock formerly evidenced by such Certificate (after taking into account all shares of Company Common Stock then held of record by such holder) and (ii) a check representing the amount of cash in lieu of fractional shares of Parent Common Stock, if any, and unpaid dividends or other distributions, if any, to which such holder is entitled pursuant to the provisions of this Article 1Section 2.03, after giving effect to any applicable withholding tax, and the Certificate so surrendered shall forthwith be canceled. In No interest will be paid or accrued on the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10and unpaid dividends and distributions, if any, payable to the Shareholders.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock shall be paid with respect to any shares of Company Common Stock represented by a record date after the Effective Time Certificate until such Certificate is surrendered for exchange as provided herein. After surrender of any such Certificate, there shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates certificate representing whole shares of Parent Common Stock issued in exchange therefor therefor, without interest interest, (i) at the amount time of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid declared with respect to such number of whole shares of Parent Common Stock and not paid, less the amount of any applicable withholding taxes thereon, and (ii) at the appropriate payment date date, the amount of dividends or other distributions with a record date after the Effective Time but prior to the date of such surrender and with a payment date subsequent to the date of such surrender payable with respect to such whole shares of Parent Common Stock, less the amount of any applicable withholding taxes thereon.
(c) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Certificates, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a shareholder of Parent. Each holder of shares of Company Common Stock who would otherwise have been entitled to receive in the Merger a fraction of a share of Parent Common Stock (after taking into account all certificates surrendered by such holder) shall be entitled to receive, in lieu thereof, a check in an amount (without interest) equal to such fractional part of a share of Parent Common Stock multiplied by the Average Price.
(d) From and after the date of this Agreement, the stock transfer books of the Company shall be closed, and there shall be no further registrations of transfers of shares of Company Common Stock on the records of the Company.
(e) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting of a bond in such reasonable amount as the Surviving Corporation may direct, Parent shall issue in exchange for such Certificate the shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; providedand unpaid dividends and distributions, howeverif any, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All on shares of Parent Common Stock issued upon the surrender for exchange of Shares deliverable in accordance with the terms hereof respect thereof as provided herein.
(including any cash paid pursuant to Section 1.10(cf) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, Promptly after the Effective Time, Certificates are presented to the Surviving Company for any reason, they Corporation shall be canceled and exchanged as provided in this Article 1.
issue to Parent a certificate representing One Hundred (f100) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment shares of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion common stock of the Exchange Fund that remains undistributed to Surviving Corporation, and Parent shall cause the stockholders certificate representing the shares of the Company upon the one year anniversary the Effective Time shall capital stock of Acquisition to be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stockcanceled.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Bisys Group Inc)
Exchange of Certificates. (a) Prior to the Effective Time, Parent shall designate a commercial bank, trust company or other financial institution, which may include Parent’s stock transfer agent, to act as required by subsections the exchange agent (“Exchange Agent”) in the Merger.
(b) and (c) belowPromptly after the Effective Time, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory make available to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares Exchange Agent for exchange in accordance with this Article 1: II, (i) certificates representing the appropriate aggregate number of shares of Parent Common Stock issuable pursuant to Section 1.82.1 in exchange for outstanding shares of Company Common Stock, and (ii) cash in an amount sufficient to be paid permit payment of the Cash Component pursuant to Section 2.1(a) and cash in lieu of fractional shares of Parent Common Stock pursuant to Section 2.1(f) (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"“Exchange Fund”), in exchange for outstanding Shares.
(bc) Promptly Promptly, and in any event no later than ten (10) business days after the Effective Time, the Exchange Agent Parent shall mail cause to be mailed to each holder of record of a certificate or certificates that which immediately prior to the Effective Time represented outstanding Shares shares of Company Common Stock (the "CERTIFICATES"“Certificates”) and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon proper delivery of the Certificates to the Exchange Agent Agent, and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyspecify and which shall be reasonably acceptable to the Company) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Cash Component and a certificate or certificates representing shares of Parent Common StockStock (and cash in lieu of fractional shares). Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly completed and validly executed, and such other documents as may be reasonably required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock andStock, if applicableplus cash in lieu of fractional shares in accordance with Section 2.1(f), a check representing the cash consideration to which such holder may be is entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 2.1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.102.3, each Certificate shall that, prior to the Effective Time, represented shares of Company Common Stock will be deemed at any time from and after the Effective Time Time, for all corporate purposes, other than the payment of dividends, to represent only evidence the right to receive upon such surrender the certificate representing number of full shares of Parent Common Stock into which such shares of Company Common Stock shall have been so converted and the right to receive an amount of cash in lieu of the issuance of any fractional shares of Parent Common Stock as contemplated by this in accordance with Section 1.102.1(f).
(cd) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall will be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), thereby until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable lawslaw, following surrender of any such Certificate Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor for the Certificate, without interest (i) interest, at the amount time of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(de) In None of the event Parent, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Common Stock for any amount properly delivered to a public official in compliance with any abandoned property, escheat or similar law.
(f) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Common Stock thereafter on the records of the Company. From and after the Effective Time, the holders of the Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by law.
(g) Subject to any applicable escheat or similar laws, any portion of the Exchange Fund that remains unclaimed by the former stockholders of the Company for one year after the Effective Time shall be delivered by the Exchange Agent to Parent, upon demand of Parent, and any former stockholders of the Company shall thereafter look only to Parent for satisfaction of their claim for certificates representing shares of Parent Common Stock in exchange for their shares of Company Common Stock pursuant to the terms of Section 2.1 hereof.
(h) If any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact fact, in form and substance reasonably acceptable to the Exchange Agent, by the holder thereof person claiming such Certificate to be lost, stolen or destroyed, and complying with such other conditions as the Exchange Agent may reasonably impose (including the execution of an indemnification undertaking or the posting of an indemnity bond or other surety in favor of the Exchange Agent and Parent with respect to the Certificate alleged to be lost, stolen or destroyed), the Exchange Agent will deliver to such person, the Cash Component, such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitySection 2.1.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Microsemi Corp)
Exchange of Certificates. (a) Prior to 6.2.1 As of the Effective Time, as required each share of Target Stock that is outstanding immediately prior thereto will, by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit virtue of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant Merger and without further action, cease to Section 1.8, exist and (ii) cash to will be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive from Acquirer the Applicable Fraction of a share of Acquirer Common Stock and the Per Share Cash Amount determined as set forth in Section 1.1.1, subject to Sections 1.1.2, 1.1.3 and 1.2.
6.2.2 As soon as practicable after the Effective Time, each holder of shares of Parent Common Target Stock pursuant that are not Dissenting Shares will surrender the certificate(s) for such shares (the "Target Certificates"), duly endorsed as requested by Acquirer, to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected Acquirer for cancellation. Promptly after the Effective Time and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder receipt of such Certificate shall be entitled Target Certificates, Acquirer will issue to receive in exchange therefor each tendering holder a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing (with legends in accordance with Section 1.6) for the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Acquirer Common Stock to which such holder is entitled pursuant to Section 1.10(f) 1.1.1 hereof, and the amount of distribute any cash payable under Section 1.1.1 and 1.2.
6.2.3 No dividends or other distributions with a payable to holders of record date of Acquirer Common Stock after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends Time, or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender cash payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, will be paid to the holder of any unsurrendered Target Certificate(s) until the holder of the Target Certificate(s) surrenders such Target Certificate(s). Subject to the effect, if any, of applicable escheat and other laws, following surrender of any Target Certificate, there will be delivered to the person entitled thereto, without interest, the amount of any dividends and distributions therefor paid with respect to Acquirer Common Stock so withheld as may be required pursuant of any date subsequent to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery Effective Time and prior to such date of a suitable bond or indemnitydelivery.
(e) 6.2.4 All cash and shares of Parent Acquirer Common Stock issued delivered upon the surrender for exchange of Shares Target Stock in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall will be deemed to have been issued delivered in full satisfaction of all rights pertaining to such Shares and there shall Target Stock. There will be no further registration of transfers on the stock transfer books of the Surviving Company Target or its transfer agent of the Shares that were outstanding immediately prior to the Effective TimeTarget Stock. If, after the Effective Time, Target Certificates are presented to the Surviving Company for any reason, they shall will be canceled and exchanged as provided in this Article Section 6.2.
6.2.5 Until certificates representing Target Stock outstanding prior to the Merger are surrendered pursuant to Section 6.2.2 above, such certificates will be deemed, for all purposes, to evidence (a) ownership of the number of shares of Acquirer Stock into which the Target Stock will have been converted and (b) the right to receive cash determined as set forth in Section 1.1.1 and 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Oni Systems Corp)
Exchange of Certificates. (a) Prior As of the Effective Time, a bank or trust company to be designated by the Parent or the New Parent prior to the record date for the Special Meeting and consented to by the Company (such consent not to be unreasonably withheld or delayed) (the "Exchange Agent") shall act as exchange agent in effecting the exchange, for the Company Merger Consideration, of certificates (the "Certificates") that, prior to the Effective Time, as required by subsections (b) and (c) below, represented Company Shares entitled to exchange pursuant to Section 2.1(a)(i). The New Parent shall deliver to its transfer agent, or a depository or deposit with the Exchange Agent in trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares Certificates formerly representing Company Shares, cash together with certificates for exchange in accordance with this Article 1: (i) certificates representing the appropriate such number of shares of New Parent Common Stock issuable into which the Company Shares are converted pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly 2.1(a)(i)(together with any dividends or distributions with respect thereto with a record date after the Effective Time, the "Exchange Agent Fund"). Promptly after the Effective Time (but in any event within three business days thereof), the New Parent shall mail cause to be mailed to each record holder of record of a certificate or certificates Certificates that immediately prior to the Effective Time represented outstanding Company Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common which shall not previously have been surrendered in connection with a Stock pursuant to Section 1.8: (iElection) a form of letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting surrendering such Certificates and receiving the Company Merger Consideration therefor. Subject to any applicable withholding tax requirements, upon the surrender of the Certificates in exchange for certificates representing shares each such Certificate together with a duly completed and executed letter of Parent Common Stock. Upon surrender of a Certificate for cancellation to transmittal, the Exchange Agent, together with such letter of transmittal duly executed, Agent shall (x) pay to the holder of such Certificate shall be entitled formerly representing Company Shares cash equal to receive in exchange therefor the amount of cash due such holder after giving effect to any Stock Election made by such holder and (y) issue to the holder of such Certificate a certificate representing for that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of the New Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented equal to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing number of shares of New Parent Common Stock due under the Company Merger Consideration elected by such holder, and cash in lieu of any fractional such Certificate shall forthwith be cancelled. Only certificates for whole shares of New Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be issued, with cash paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to as provided in Section 1.10(f)2.4(b) below. Until so surrendered and exchanged, until the holder of record of each such Certificate (other than Certificates representing Company Shares held by New Parent or the Company or Dissenting Shares) shall surrender such Certificaterepresent solely the right to receive the Company Merger Consideration therefor. Subject to the effect of applicable laws, following surrender of If any such Certificate there shall be paid to the record holder of the certificates representing whole shares of for New Parent Common Stock are to be issued to a person other than the holder in whose name the Certificate formerly representing Company Shares surrendered in exchange therefor without interest (i) is registered, it shall be a condition to such issuance that the amount person requesting such issuance shall pay to the Exchange Agent any transfer or other taxes required by reason of any cash payable in lieu the issuance of a fractional share of such certificates for New Parent Common Stock to which a person other than the registered holder of the Certificate surrendered, or such person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder is entitled of Company Shares for any Company Merger Consideration delivered to a public official pursuant to Section 1.10(fapplicable abandoned property, escheat and similar laws.
(b) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole No fractional shares of New Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with Certificates, no dividend or distribution of the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) New Parent shall be deemed to have been issued in full satisfaction of all rights pertaining relate to such Shares fractional share interests and there shall be no further registration such fractional share interests will not entitle the owner thereof to vote or to any rights of transfers on the stock transfer books a stockholder of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeNew Parent. If, after As promptly as practicable following the Effective Time, Certificates are presented the New Parent 6 12 shall pay to each record holder of Company Shares an amount in cash, if any, equal to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined product obtained by multiplying the Average Stock Price by (i) the fractional share interest to which such holder (after taking into account all Company Shares held at the Effective Time by such holder) would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused entitled by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.ii)
Appears in 1 contract
Sources: Agreement and Plan of Contribution and Merger (Protection One Acquistion Holding Corp)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its select a reputable attorney, transfer agent, or a depository bank or trust institution of recognized standing selected by Parent and Acquisition and company reasonably satisfactory acceptable to the Company to act as payment and exchange agent in the Merger (the "EXCHANGE AGENT") for “Exchange Agent”). Parent shall deposit with the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Exchange Agent certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such 1.5(a). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares of Parent Common Stock, are hereinafter referred to collectively as the "EXCHANGE FUND"), in exchange for outstanding Shares“Exchange Fund.”
(b) Promptly after the Effective TimeAs promptly as practicable, the Exchange Agent shall will mail to each holder the Persons who were record holders of record of a certificate or certificates that Company Stock Certificates immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent); and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for cash and certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executed, and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor therefor, a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5(a); and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing cash and shares of Parent Common Stock pursuant to the provisions of Section 1.5(a). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and cash in lieu as a condition to the payment of any fractional shares cash or the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as contemplated by this Section 1.10Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Subsidiary Corporation with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable abandoned property, escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon date 180 days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for shares of Parent Common Stock and cash in lieu pursuant to the provisions of fractional shares, as the case may be, Section 1.5(a) and any applicable dividends or distributions with respect to shares of Parent Common Stock.
(he) Each of the Exchange Agent, Parent and the Surviving Subsidiary Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Subsidiary Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or other similar lawLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Tres Estrellas Enterprises, Inc.)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit, or a depository shall cause to be deposited, with ▇▇▇▇▇ Fargo Bank, N.A. or another bank or trust institution of recognized standing selected company designated by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") “Exchange Agent”), for the benefit of the holders of Shares Shares, for exchange in accordance with this Article 1: III through the Exchange Agent, (i) certificates representing the appropriate a number of shares of Parent Common Stock equal to the Maximum Stock Merger Consideration issuable to the Company stockholders pursuant to Section 1.8, 3.01 and (ii) an amount of cash sufficient to deliver to holders of Shares the Maximum Cash Merger Consideration to which they are entitled pursuant to Section 3.01. Parent further agrees to provide to the Exchange Agent, from time to time as needed, immediately available funds sufficient to pay any dividends and other distributions pursuant to Section 3.03(c). Any cash and certificates representing Parent Stock deposited with the Exchange Agent shall hereinafter be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND")“Exchange Fund.” Pursuant to irrevocable instructions, in exchange the Exchange Agent shall promptly deliver the Merger Consideration from the Exchange Fund to the former Company stockholders who are entitled thereto pursuant to Section 3.01. Except as contemplated by Sections 3.03(c) and 3.03(e) hereof, the Exchange Fund shall not be used for outstanding Sharesany other purpose.
(b) Promptly (and in any event within five (5) Business Days) after the Effective Time, Parent shall cause the Exchange Agent shall to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding formerly representing Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares a “Certificate”), other than Parent or Merger Sub or any wholly-owned Subsidiary of Parent Common Stock pursuant to Section 1.8: or Merger Sub, (i) a letter of election and transmittal (which will include the Form of Merger Election) that shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon proper delivery of the Certificates to the Exchange Agent and Agent, which letter shall be in such customary form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the such Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal election and transmittal, duly executedexecuted and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole (A) one or more shares of Parent Common Stock andrepresenting, if applicablein the aggregate, a check representing the cash consideration to which such holder may be entitled on account whole number of a fractional share of Parent Common Stock shares that such holder has the right is entitled to receive pursuant to Section 3.01 (after taking into account any applicable proration or other adjustments and aggregating any fractional shares resulting from all Shares surrendered by such holder pursuant to the provisions Merger), (B) the Cash Merger Consideration that such holder is entitled to receive pursuant to Section 3.01 in respect of this Article 1the Shares represented by such Certificate and/or (C) a check in the amount of the cash that such holder is entitled to be paid in respect of any fractional shares of Parent Stock pursuant to Section 3.03(e) and dividends and other distributions pursuant to Section 3.03(c), if any, and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or will accrue on any cash payable pursuant to Section 3.01, Section 3.03(c) or Section 3.03(e). In the event of a transfer of ownership of Shares that which is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock Merger Consideration may be issued and paid with respect to such Shares to such a transferee if the Certificate representing such transferred Shares is presented to the Exchange Agent in accordance with this Section 3.03(b), accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the any holder of any unsurrendered Certificate with respect who is entitled to the shares of receive Parent Common Stock represented therebyupon such surrender, and no cash payment in lieu respect of fractional shares shall be paid to any such holder pursuant to Section 1.10(f3.03(e), unless and until the holder of record of such Certificate shall surrender such CertificateCertificate in accordance with Section 3.03(b). Subject to the effect of escheat, Tax or other applicable lawsLaws, following surrender of any such Certificate Certificate, there shall be paid to the record holder of the stock certificates representing whole shares of Parent Common Stock to be issued in exchange therefor therefor, without interest interest, (i) promptly, (A) the amount of any cash payable in lieu of pursuant to any Cash Merger Election and any cash payable with respect to a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f3.03(e) and (B) the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date date, the amount of dividends or other distributions distributions, with a record date after the Effective Time but prior to the date of surrender of such holder’s Certificate and a payment date subsequent to surrender occurring after the date of surrender, payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor The Merger Consideration delivered upon the making surrender of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares Certificates in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c3.03(c) or 1.10(fSection 3.03(e)) shall be deemed to have been issued paid in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1represented by such Certificates.
(fe) No fractions In lieu of a any fractional share of Parent Common Stock shall that otherwise would be issued in issuable pursuant to the Merger, but in lieu thereof each holder of Shares who otherwise would be entitled to receive a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates pursuant to the Merger will be entitled to receive paid an amount of in cash (without interest) determined by multiplying equal to such holder’s respective proportionate interest in the Average Stock Price proceeds from the sale or sales in the open market by the Exchange Agent for the Merger, on behalf of all such holders, of the aggregate fractional share interest shares of Parent Stock issued pursuant to which the Merger. As soon as practicable following the Election Deadline, the Exchange Agent shall determine the excess of (i) the number of whole shares of Parent Stock issuable to the holders of Shares pursuant to the Merger including fractional shares, over (ii) the aggregate number of whole shares of Parent Stock to be distributed to former holders of Shares pursuant to the Merger (such holder would otherwise be entitledexcess being collectively called the “Excess Merger Parent Stock”). The parties acknowledge that payment Exchange Agent, as agent and trustee for the former holders of Shares, shall as promptly as reasonably practicable sell the Excess Merger Parent Stock at the prevailing prices on the NYSE. The sales of the Excess Merger Parent Stock by the Exchange Agent shall be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. Parent shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Exchange Agent and costs associated with calculating and distributing the respective cash consideration amounts payable to the applicable former holders of Shares, incurred in connection with such sales of Excess Merger Parent Stock. Until the proceeds of such sales have been distributed to the former holders of Shares to whom fractional shares of Parent Stock otherwise would have been issued in the Offer, the Exchange Agent will hold such proceeds in trust for such former holders. As soon as practicable after the determination of the amount of cash to be paid to former holders of Shares in lieu of issuing any fractional shares was not separately bargained for considerationof Parent Stock, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional sharesExchange Agent shall distribute such amounts to such former holders.
(gf) Any portion of the Exchange Fund that which remains undistributed to the stockholders holders of the Company upon the one year anniversary Shares six months after the Effective Time shall be delivered returned to Parent Parent, upon demand, and, from and after such delivery to Parent, any stockholders holders of the Company Shares who have not theretofore complied with this Article 1 III shall thereafter look only to Parent for payment the Merger Consideration payable in respect of their claim for Parent Common Stock and such Shares, any cash paid in lieu respect of fractional shares, as the case may be, shares of Parent Stock to which they are entitled pursuant to Section 3.03(e) and any applicable dividends or other distributions with respect to Parent Common StockStock to which they are entitled pursuant to Section 3.03(c), in each case, without any interest thereon.
(hg) Neither Parent Parent, Merger Sub, the Surviving Corporation, the Exchange Agent nor the Company shall be liable to any holder of Shares for any such shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawLaw.
(h) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Surviving Corporation, the posting by such Person of a bond in such reasonable amount as Surviving Corporation may direct as indemnity against any claim that may be made against Surviving Corporation with respect to such Certificate, the Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect of the Shares represented by such Certificate, any cash paid in respect of fractional shares of Parent Stock to which the holders thereof are entitled pursuant to Section 3.03(e) and any dividends or other distributions to which the holders thereof are entitled pursuant to Section 3.03(c), in each case, without any interest thereon.
(i) Parent or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer or this Agreement to any holder of Shares such amounts as Parent or the Exchange Agent are required to deduct and withhold under the Code, or any Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld by Parent or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of whom such deduction and withholding was made by Parent or the Exchange Agent.
(j) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent upon termination of the Exchange Fund pursuant to Section 3.03(f). In the event the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Exchange Agent hereunder, Parent shall promptly deposit cash into the Exchange Fund in an amount that is equal to the deficiency in the amount of cash required to fully satisfy such payment obligations.
Appears in 1 contract
Sources: Merger Agreement (Inamed Corp)
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its select a reputable attorney, transfer agent, or a depository bank or trust institution of recognized standing selected by Parent and Acquisition and company reasonably satisfactory acceptable to the Company to act as payment and exchange agent in the Merger (the "EXCHANGE AGENT") for “Exchange Agent”). Parent shall deposit with the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Exchange Agent certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such 1.5(a). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares of Parent Common Stock, are hereinafter referred to collectively as the "EXCHANGE FUND"), in exchange for outstanding Shares“Exchange Fund.”
(b) Promptly after the Effective TimeAs promptly as practicable, the Exchange Agent shall will mail to each holder the Persons who were record holders of record of a certificate or certificates that Company Stock Certificates immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8Time: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent); and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for cash and certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executed, and such other documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor therefor, a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5(a); and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing cash and shares of Parent Common Stock pursuant to the provisions of Section 1.5(a). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and cash in lieu as a condition to the payment of any fractional shares cash or the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as contemplated by this Section 1.10Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable abandoned property, escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon date 180 days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for shares of Parent Common Stock and cash in lieu pursuant to the provisions of fractional shares, as the case may be, Section 1.5(a) and any applicable dividends or distributions with respect to shares of Parent Common Stock.
(he) Neither Each of the Exchange Agent, Parent nor shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld from such consideration under the Company Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Parent shall not be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or other similar lawLegal Requirement.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) Noble Innovations shall enter into an agreement with, and (c) belowshall deposit with, Parent shall deliver to its transfer agent▇▇▇▇▇▇▇▇▇▇ Law Group, or a depository such other agent or trust institution of recognized standing selected by Parent and Acquisition and reasonably agents as may be satisfactory to the Company Noble Innovations and Noble Systems (the "EXCHANGE AGENT") Exchange Agent'), for the benefit of the holders of Shares Noble Systems Common Shares(the “Shares”), for exchange through the Exchange Agent in accordance with this Article 1: (i) I, certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash Noble Innovations Shares to be paid in lieu issued to holders of fractional Noble Systems Shares. In the event of the existence of partial shares, upon completion of the conversion, Noble Innovations shall issue sufficient additional shares through the Exchange Agent to round up the number of Parent Common Stock (such shares to avoid the issuance of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Sharespartial shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that which immediately prior to the Effective Time represented outstanding Noble Systems Shares (the "CERTIFICATESCertificates") and whose shares were converted into the right to receive shares of Parent Common Stock Noble Innovations Shares pursuant to Section 1.81.6: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent Noble Systems and the Company Noble Innovations may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common StockNoble Innovations Shares. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly executed, and any other required documents, the holder of such Certificate shall be entitled to receive in exchange therefor therefore a certificate representing that number of whole shares of Parent Common Stock Noble Innovations Shares and, if applicable, a check representing the cash consideration to rounding up shares as referenced above, which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1I, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Noble Systems Shares that is which are not registered in the transfer records of the CompanyNoble Systems, a certificate representing the proper number of shares of Parent Common Stock Noble Innovations Shares may be issued to a transferee if the Certificate representing such Noble Systems Shares is presented to the Exchange Agent accompanied by all documents required by the Exchange Agent or Noble Innovations to evidence and effect such transfer and by evidence that any applicable stock transfer or other taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock Noble Innovations Shares as contemplated by this Section 1.101.7.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock Noble Innovations Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered un-surrendered Certificate with respect to the shares of Parent Common Stock Noble Innovations Shares represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), thereby until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Noble Systems Shares or Noble Innovations Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor therefor, upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock Noble Innovations Shares and cash in lieu of fractional sharesNoble Innovations Shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent Noble Innovations or the Exchange Agent Agent, may, in its respective discretion, require the delivery of a suitable bond bond, opinion or indemnity.
(e) All shares of Parent Common Stock Noble Innovations Shares issued upon the surrender for exchange of Noble Systems Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there Noble Systems Shares. There shall be no further registration of transfers on the stock transfer books of the Surviving Company either of Noble Systems or Noble Innovations of the Noble Systems Shares that or Noble Innovations Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company Noble Innovations for any reason, they shall be canceled and exchanged as provided in this Article 1.I.
(f) No fractions of a share of Parent Common Stock fractional Noble Innovations Shares shall be issued in the Merger, but in lieu thereof each holder of Noble Systems Shares otherwise entitled to a fraction of a share of Parent Common Stock shall fractional Noble Innovations Share shall, upon surrender of its, his or her Certificate or Certificates Certificates, be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for considerationadditional Noble Innovations share, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed rounded up to the stockholders nearest number of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock“rounded up shares”.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. Representing Barn▇▇▇▇▇ ▇▇▇mon Stock and Company Common Stock.
(a) Prior to As of the Effective Barn▇▇▇▇▇ ▇▇▇ective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit, or a depository or trust institution of recognized standing shall cause to be deposited, with an exchange agent selected by Parent, which shall be Parent's transfer agent for the Parent and Acquisition and Common Stock or such other party reasonably satisfactory to Barn▇▇▇▇▇ ▇▇▇ the Company (the "EXCHANGE AGENTExchange Agent") ), for the benefit of the holders of Shares shares of Barn▇▇▇▇▇ ▇▇▇mon Stock and Company Common Stock, for exchange in accordance with this Article 1: (i) 4, certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and the cash in lieu of fractional shares (such cash are and certificates for shares of Parent Common Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "EXCHANGE FUNDExchange Fund"), ) to be issued pursuant to Sections 4.2 and 4.3 and paid pursuant to this Section 4.4 in exchange for outstanding Shares.
shares of Barn▇▇▇▇▇ ▇▇▇mon Stock or Company Common Stock. (b) (i) Promptly after the Barn▇▇▇▇▇ ▇▇▇ective Time and the Company Effective Time, respectively, Parent shall cause the Exchange Agent shall to mail to each holder of record of a certificate one or certificates that immediately prior to the Effective Time represented outstanding Shares more Barn▇▇▇▇▇ ▇▇▇tificates or Company Certificates (collectively, the "CERTIFICATESCertificates") and whose shares were converted into the right (other than to receive shares holders of Parent Barn▇▇▇▇▇ ▇▇▇mon Stock or Company Common Stock that, pursuant to Section 1.8: Sections 4.2(d) and 4.3(d), respectively, are canceled without payment of any consideration therefor): (iA) a letter of transmittal (the "Letter of Transmittal") which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and Parent, the Company may and Barn▇▇▇▇▇ ▇▇▇ reasonably specify) specify and (iiB) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common StockStock and cash in lieu of fractional shares. Upon surrender of a Certificate for cancellation to the Exchange Agent, Agent together with such letter Letter of transmittal Transmittal, duly executedexecuted and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent Common Stock and, if applicable, and (y) a check representing the amount of cash consideration to in lieu of fractional shares, if any, and unpaid dividends and distributions, if any, which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article 14, after giving effect to any required withholding tax, and the Certificate so surrendered shall forthwith be canceled; provided, however, that in the case of surrenders of Barn▇▇▇▇▇ ▇▇▇tificates, the Parent Common Stock issued in exchange therefor shall be delivered as set forth in paragraph (ii) of this Section 4.4(b). No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to holders of Certificates. In the event of a transfer of ownership of Shares that Barn▇▇▇▇▇ ▇▇▇mon Stock or Company Common Stock which is not registered in the transfer records of Barn▇▇▇▇▇ ▇▇ the Company, respectively, a certificate representing the proper number of shares of Parent Common Stock Stock, together with a check for the cash to be paid in lieu of fractional shares, may be issued to such a transferee if the Certificate representing such Shares Barn▇▇▇▇▇ ▇▇▇mon Stock or Company Common Stock is presented to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer and by to evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Closing, Transpro's transfer agent will be designated to act as exchange agent (the "Exchange Agent") for the purpose of exchanging the Spin Off Stock Certificate for certificates representing that number of shares of Surviving Corporation Common Stock that are to be issued pursuant to Section 3.1(a). The costs and expenses of the Exchange Agent will be borne as provided in Section 6.25. As soon as practicable, but in any event no later than five Business Days following the Effective Time, the Surviving Corporation will deposit with the Exchange Agent, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") nominee for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Newco Shareholders, certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Surviving Corporation Common Stock (such shares of Parent Surviving Corporation Common Stock Stock, together with cash for the payment of any dividends or distributions with respect thereto and such cash are the Fractional Share Amount, being hereinafter referred to as the "EXCHANGE FUNDExchange Fund") to be issued pursuant to Section 3.1(a). As soon as practicable, but in exchange for outstanding Shares.
(b) Promptly after any event no later than ten calendar days following the Effective Time, the Exchange Agent shall mail will distribute to each holder Newco Shareholder (other than holders of shares of Newco Common Stock that are cancelled pursuant to Section 3.1(b)) (i) certificates representing the whole number of shares of Surviving Corporation Common Stock into which such Person's shares of Newco Common Stock have been converted in accordance with Section 3.1(a), (ii) the amount of dividends or other distributions, if any, with a record of a certificate date on or certificates that immediately prior to after the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right which theretofore became payable with respect to receive such shares of Parent Surviving Corporation Common Stock pursuant to Section 1.8: Stock, and (iiii) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery portion of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to Fractional Share Amount which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder Newco Shareholder has the right to receive pursuant to the provisions of this Article 1Section 3.2(d), and the Spin Off Stock Certificate so surrendered shall will forthwith be canceledcancelled. In the no event of a transfer of ownership of Shares that is not registered will any Newco Shareholder be entitled to receive interest on any funds to be received in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence Merger. From and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time Time, the interest of each Newco Shareholder immediately prior to represent only the Merger in the Spin Off Stock Certificate will be limited to the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No shares, dividends or other distributions declared or made distributions, if any, and portion of the Fractional Share Amount described above. Each Newco Shareholder who otherwise would have been entitled to a fraction of a share of Surviving Corporation Common Stock upon conversion of such Person's shares of Newco Common Stock pursuant to Section 3.1(a) (after aggregating all of such Person's shares of Newco Common Stock immediately prior to the Effective Time with respect to Parent Common Stock with Time) will receive from the Exchange Agent a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Surviving Corporation Common Stock to which such holder is entitled pursuant to Section 1.10(f) and Stock. The cash payment will be the amount of dividends or other distributions with whereby the Exchange Agent will receive a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at that represent the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant sell such shares and distribute the proceeds (net of related sales commissions and other expenses) to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery Newco Shareholders who would otherwise have been entitled to a fraction of a suitable bond or indemnity.
share of Surviving Corporation Common Stock (e) such aggregate amount, the "Fractional Share Amount"), pro rata based on the fraction of a share to which each such Newco Shareholder would otherwise have been entitled. All shares of Parent Surviving Corporation Common Stock issued upon the surrender for exchange conversion of Shares shares of Newco Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall will be deemed to have been issued at the Effective Time in full satisfaction of all rights pertaining to such Shares and there shall shares of Newco Common Stock. If any certificate representing shares of Surviving Corporation Common Stock is to be no further registration of transfers on issued in a name other than the stock transfer books name of the Newco Shareholder entitled to such shares of Surviving Company of the Shares that were outstanding immediately prior Corporation Common Stock, it will be a condition to the Effective Time. If, after the Effective Time, Certificates are issuance thereof that appropriate transfer documentation be presented to the Surviving Company Exchange Agent and that the Person requesting such issuance pay to the Exchange Agent in advance any transfer or other Taxes required by reason of such issuance or for any other reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions or establish to the satisfaction of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his Exchange Agent that such Tax has been paid or her Certificate or Certificates is not payable. The Surviving Corporation will be entitled to receive an amount deduct and withhold from the shares of cash (without interest) determined by multiplying Surviving Corporation Common Stock any dividends or distributions thereon or otherwise payable hereunder to any Newco Shareholder and any portion of the Average Stock Price Fractional Share Amount such amounts as it is required to deduct and withhold with respect to the making of such payment under any provisions of Federal, state, local or foreign income tax Law. To the extent that the Surviving Corporation so withholds those amounts, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the Newco Shareholder in respect of the shares for which such deduction and withholding was made by the fractional share interest to which such holder would otherwise be entitledSurviving Corporation. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary unclaimed by Newco Shareholders for 12 months after the Effective Time shall will be delivered to Parent upon demandthe Surviving Corporation, and any stockholders of the Company such Newco Shareholders who have not theretofore complied with this Article 1 shall Section 3.2 will thereafter look only to Parent the Surviving Corporation for payment of their claim for Parent the shares of Surviving Corporation Common Stock and cash in lieu Stock, any portion of fractional shares, as the case may be, Fractional Share Amount and any applicable unpaid dividends or distributions with thereon deliverable in respect to Parent of each share of Newco Common Stock.
(h) Neither Parent nor , without any interest thereon. Any such portion of the Company shall Exchange Fund remaining unclaimed by Newco Shareholders that would otherwise escheat to or become property of any Governmental Entity will, to the extent permitted by applicable Laws, become the property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto. None of the Surviving Corporation, Transpro, Modine, Modine's transfer agent, the Exchange Agent or any other Person will be liable to any holder of Shares Newco Shareholder for any shares of Parent Surviving Corporation Common Stock (Stock, any dividend or dividends or distributions other distribution with respect thereto) thereto or cash from any portion of the Exchange Fund Fractional Share Amount delivered in good faith to a public official Governmental Entity pursuant to and as required by any applicable abandoned property, escheat or similar lawapplicable Laws. The Exchange Agent will invest any cash included in the Exchange Fund as directed by the Surviving Corporation, on a daily basis. Any interest and other income resulting from such investments will be paid to the Surviving Corporation promptly upon request by the Surviving Corporation.
Appears in 1 contract
Exchange of Certificates. (a) Prior to At the Effective Time, the stock transfer books of PharmaGenics shall be closed and no transfers of shares of PharmaGenics Stock may be made thereafter. Genzyme shall authorize one or more persons (not affiliated with Genzyme) to act, until such time as required by subsections (b) and (c) belowall certificates representing shares of PharmaGenics Preferred Stock shall have been exchanged in accordance herewith, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company as exchange agent hereunder (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUNDExchange Agent"), in exchange for outstanding Shares.
(b) Promptly . As soon as practicable after the Effective Time, Genzyme shall cause the Exchange Agent shall to mail to each holder all former holders of record of PharmaGenics Preferred Stock instructions for surrendering their certificates representing PharmaGenics Preferred Stock in exchange for a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common StockGMO Stock (determined in accordance with Section 1.8(b). Upon such surrender of a Certificate for cancellation PharmaGenics Preferred Stock certificate to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate certificate shall be entitled to receive in exchange therefor therefor, at the time specified in Section 1.10(b), a certificate representing that number of whole shares of Parent Common GMO Stock and, if applicable, a check representing into which the cash consideration to which shares of PharmaGenics Preferred Stock theretofore represented by such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive certificate so surrendered shall have been converted pursuant to the provisions of this Article 1Agreement (together with any cash in lieu of fractional shares pursuant to Section 1.11), and the Certificate certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by in accordance with the provisions of this Section 1.10Section, each Certificate PharmaGenics Preferred Stock certificate (other than certificates for shares to be canceled in accordance with Section 1.8(a)(ii), (iii) and (iv) hereof and Dissenting Shares, if any) shall be deemed at any time after the Effective Time to represent only for all purposes the right to receive upon such surrender the certificate representing shares of Parent Common GMO Stock and the right to receive payment of cash in lieu of any for fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented therebyshares, and no cash payment in lieu of fractional shares shall be paid to any such holder if any, pursuant to Section 1.10(f)1.11 hereof. Until such certificates are surrendered, until the holder holders thereof shall not be entitled to receive any dividend or other distribution payable to holders of record shares of GMO Stock. Upon such Certificate shall surrender such Certificate. Subject to the effect of applicable lawssurrender, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common GMO Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which upon such holder is entitled pursuant to Section 1.10(f) and exchange, the amount of dividends or other distributions with a record date after that became payable following the Effective Time theretofore and were not paid with respect because of the failure to surrender certificates for exchange. In no event shall the persons entitled to receive such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after be entitled to receive interest thereon. GMO Stock into which the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In PharmaGenics Preferred Stock shall be converted in the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) Merger shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to at the Effective Time. IfIf any GMO Stock certificates are to be issued in a name other than that in which the PharmaGenics Preferred Stock certificate surrendered is registered, after it shall be a condition of such exchange that the Effective Time, Certificates are presented person requesting such exchange shall deliver to the Surviving Company Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of certificates for any reason, they shall be canceled and exchanged as provided such shares of GMO Stock in this Article 1a name other than that of the registered holder of the certificate surrendered or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.
(fb) No fractions of a share of Parent Common All certificates for GMO Stock issued in exchange for PharmaGenics Preferred Stock shall be issued held by the Exchange Agent, no delivery thereof to the former holders of PharmaGenics Preferred Stock, or transfers thereof on the books of Genzyme, may be made until the earlier of:
(i) in the Merger, but in lieu thereof each holder case of Shares otherwise entitled certificates to a fraction be issued to executive officers and directors of a share PharmaGenics and the beneficial owners of Parent Common Stock shall upon surrender of his five percent (5%) or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment more of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent PharmaGenics Common Stock (on an as converted basis) and each of HealthCare Ventures II, L.P., HealthCare Ventures III, L.P., HealthCare Ventures IV, L.P., ▇▇▇▇▇▇ Trust, Everest Trust and PaineWebber R&D Partners III, L.P., and their respective affiliates:
(A) 270 days after the effectiveness of a registration statement for an initial public offering of GMO Stock, (B) three (3) years following the Closing Date or dividends (C) the distribution or distributions with respect theretosale of GMO Designated Shares by Genzyme to the public; provided, however, that in the case of clauses (A) or cash from the Exchange Fund delivered to (B), if Genzyme, as of such date, has filed a registration statement for a public official pursuant offering of GMO Stock (other than the initial public offering of GMO Stock), such date shall be extended until 90 days after the effective date of such registration statement, and
(ii) in the case of certificates to and be issued to all other holders of PharmaGenics Preferred Stock:
(A) 180 days after the effectiveness of a registration statement for an initial public offering of GMO Stock, (B) three (3) years following the Closing Date or (C) the distribution or sale of GMO Designated Shares by Genzyme to the public; provided, however, that in the case of clauses (A) or (B), if Genzyme, as required by any applicable abandoned propertyof such date, escheat or similar lawhas filed a registration statement for a public offering of GMO Stock (other than the initial public offering of GMO Stock), such date shall be extended until 90 days after the effective date of such registration statement.
Appears in 1 contract
Exchange of Certificates. (a) Prior At or prior to the Effective Time, as required by subsections (b) each holder of Company Common Stock shall surrender the certificates representing such stock to the Parent and (c) below, the Parent shall deliver issue or cause to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory be issued to such holder at the Company (Closing the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such the holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockentitled.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(eb) All shares of Parent Common Stock issued and cash paid upon conversion of the surrender for exchange shares of Shares Company Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued or paid in full satisfaction of all rights pertaining to such Shares and there shall be no further registration shares of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1Common Stock.
(fc) No fractions of a share certificates or scrip evidencing fractional shares of Parent Common Stock shall be issued in upon the Mergersurrender for exchange of Certificates, but in and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu thereof of any such fractional shares, each holder of Shares otherwise entitled to a fraction of a share of Parent Company Common Stock shall upon surrender of his or her a Certificate or Certificates for exchange pursuant to this Section 3.2 shall be entitled to receive paid an amount of in cash (without interest) ), rounded to the nearest cent, determined by multiplying (a) the Average Stock Price by (b) the fractional share interest to which such holder would otherwise be entitledentitled (after taking into account all shares of Company Common Stock then held of record by such holder). The parties acknowledge that payment "Average Stock Price" shall mean the average of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares per share closing prices of Parent Common Stock on the Nasdaq SmallCap Market during the 10 consecutive trading days ending the tenth trading day prior to the Parent Stockholders' Meeting (or dividends or distributions as defined in Section 7.3). At the Closing, concurrently with the issuance of the certificates representing the Parent Common Stock as set forth in Section 3.1(a), Parent shall pay the amount of cash, if any, to be paid to holders of Company Common Stock with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant any fractional share interests, to such holders of Company Common Stock subject to and as required by any applicable abandoned property, escheat or similar lawin accordance with this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Room Plus Inc)
Exchange of Certificates. (a) Prior to As promptly as practicable after the Effective TimeClosing, as required by subsections (b) and (c) below, Parent each Street Stockholder shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to 7th Level at the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Closing certificates representing the appropriate all shares of Street Preferred Stock owned by such Street Stockholder, and, in exchange therefor, 7th Level shall deliver to each Street Stockholder certificates representing that number of shares of Parent 7th Level Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder Street Stockholder has the right to receive pursuant to the provisions of this Article 1, Section 2.01(b) and the Certificate certificates for shares of Street Preferred Stock so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of Until such shares of Parent Common Street Preferred Stock may be issued to a transferee if the Certificate are so delivered, certificates representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shares of Street Preferred Stock shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate delivery one or more certificates representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent 7th Level Common Stock as contemplated by this Section 1.102.02 and the holders thereof shall have no rights whatsoever as stockholders of 7th Level or Street other than with respect to dividends or distributions made upon such shares of 7th Level Common Stock, if any.
(cb) No dividends or other distributions declared or made As promptly as practicable after the Closing, each Street Stockholder shall deliver to 7th Level at the Closing certificates representing all shares of Street Common Stock owned by such Street Stockholder, and, in exchange therefor, 7th Level shall deliver to each Street Stockholder certificates representing that number of shares of 7th Level Common Stock and Series D Stock which such Street Stockholder has the right to receive pursuant to Section 2.01(c) and the certificates for shares of Street Common Stock so surrendered shall forthwith be canceled. Until such shares of Street Common Stock are so delivered, certificates representing such shares of Street Common Stock shall be deemed at any time after the Effective Time to represent only the right to receive upon such delivery one or more certificates representing shares of 7th Level Common Stock and Series D Stock as contemplated by this Section 2.02 and the holders thereof shall have no rights whatsoever as stockholders of 7th Level or Street other than with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor made upon the making of an affidavit of that fact by the holder thereof such shares of Parent 7th Level Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Series D Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (7th Level Inc)
Exchange of Certificates. (a) Prior to 3.1 At or before the Effective Time, as required by subsections each holder of shares of Company stock will surrender the certificate(s) for such shares (b) each a "COMPANY CERTIFICATE"), duly endorsed to HNC for cancellation. Promptly after the Effective Time and (c) belowreceipt of such Company Certificates, Parent shall deliver to HNC or its transfer agent, or agent will issue to each tendering holder of a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") Certificate a certificate for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent HNC Common Stock to which such holder is entitled pursuant to Section 1.10(f) 2.1.2 hereof (less the Escrow Shares to be placed in escrow pursuant to Section 2.4 of the Plan and the Escrow Agreement), and HNC or its transfer agent will pay by check to each tendering holder cash in lieu of fractional shares in the amount of payable to such holder in accordance with Section 2.1.4 hereof. At the Closing (as defined in the Plan), HNC will deliver the certificates representing the Escrow Shares to the Escrow Agent pursuant to the Escrow Agreement.
3.2 No dividends or other distributions with a payable to holders of record date of HNC Common Stock after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends Time, or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender cash payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, will be paid to the holder of any unsurrendered the Company Certificate until the holder of such unsurrendered the Company Certificate surrenders such the Company Certificate to HNC as provided above. Subject to the effect, if any, as may of applicable escheat and other laws, following surrender of any the Company Certificate, there will be required pursuant delivered to this Agreement; providedthe person entitled thereto, howeverwithout interest, that Parent or the Exchange Agent may, in its discretion, require the delivery amount of a suitable bond or indemnity.
(e) All shares of Parent any dividends and distributions therefor paid with respect to HNC Common Stock issued upon the surrender for exchange so withheld as of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior date subsequent to the Effective Time. If, after the Effective Time, Certificates are presented Time and prior to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1such date of delivery.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to 7.2.1 As of the Effective Time, as required all shares of Aimtech Common Stock that are outstanding immediately prior thereto will, by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit virtue of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant Merger and without further action, cease to Section 1.8, exist and (ii) cash to will be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to from Asymetrix the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Asymetrix Merger StockAsymetrix Common Stock may be issued determined as set forth in Section 1.1, subject to a transferee if Section 1.2.
7.2.2 As soon as practicable after the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10Effective Time, each Certificate shall be deemed at any time holder of shares of Aimtech Common Stock that are not Dissenting Shares will surrender the certificate(s) for such shares (the "Aimtech Certificates"), duly endorsed as -------------------- requested by Asymetrix, to Asymetrix for cancellation. Promptly after the Effective Time and receipt of such Aimtech Certificates, Asymetrix will issue to represent only each tendering holder a certificate for the right to receive upon such surrender the certificate representing number of shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Asymetrix Merger StockAsymetrix Common Stock to which such holder is entitled pursuant to Section 1.10(f) 2.1 hereof, less the shares of Asymetrix Merger StockAsymetrix Common Stock deposited into escrow pursuant to Section 2.4 hereof, and the amount of distribute any cash payable under Section 2.2.
7.2.3 No dividends or other distributions with a payable to holders of record date of Asymetrix Merger StockAsymetrix Common Stock after the Effective Time theretofore Time, or cash payable in lieu of fractional shares, will be paid with respect to the holder of any unsurrendered Aimtech Certificate(s) until the holder of the Aimtech Certificate(s) surrenders such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends Aimtech Certificate(s), or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to if such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been certificates are lost, stolen or destroyed, provides an indemnity reasonably acceptable to Asymetrix. Subject to the Exchange Agent shall issue in exchange effect, if any, of applicable escheat and other laws, following surrender of any Aimtech Certificate, there will be delivered to the person entitled thereto, without interest, the amount of any dividends and distributions therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent paid with respect to Asymetrix Merger StockAsymetrix Common Stock so withheld as of any date subsequent to the Effective Time and prior to such date of delivery.
7.2.4 All Asymetrix Merger StockAsymetrix Common Stock (and, if applicable, cash for Aimtech Dissenting Shares or in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued delivered upon the surrender for exchange of Shares Aimtech Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall will be deemed to have been issued delivered in full satisfaction of all rights pertaining to such Shares and there shall Aimtech Common Stock. There will be no further registration of transfers on the stock transfer books of the Surviving Company Aimtech or its transfer agent of the Shares that were outstanding immediately prior to the Effective TimeAimtech Common Stock. If, after the Effective Time, Aimtech Certificates are presented to the Surviving Company for any reason, they shall will be canceled and exchanged as provided in this Article 1Section.
(f) No fractions of a share of Parent 7.2.5 Until certificates representing Aimtech Common Stock outstanding prior to the Merger are surrendered pursuant to Section 7.2.2 above, such certificates will be deemed, for all purposes, to evidence ownership of the number of shares of Asymetrix Merger StockAsymetrix Common Stock into which Aimtech Common Stock will have been converted pursuant to Section 2.1 hereof, reduced by the number of shares withheld as Escrow Shares.
7.2.6 Certificates which are not presented to Asymetrix within three years after the Closing shall be issued in canceled and the Merger, but in lieu holder thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates will no longer be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash any Asymetrix securities in consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional sharesthereof.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Asymetrix Learning Systems Inc)
Exchange of Certificates. (a) Prior to At the Effective Time, as required by subsections (b) and (c) belowClosing, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Shareholders certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender Stock Certificates. In lieu of the Certificates in exchange for certificates representing any fractional Parent shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with which such letter of transmittal duly executedholder would otherwise be entitled, the holder of such Company Stock Certificate shall be entitled paid in cash an amount equal to receive in exchange therefor a certificate representing that number the sum of (1) the dollar amount (rounded to the nearest whole shares of Parent Common Stock and, if applicable, a check representing cent) determined by multiplying $132.80 by the cash consideration to which such holder may be entitled on account fraction of a fractional share of Parent Common Stock that would otherwise be deliverable to such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate above. All Company Stock Certificates so surrendered exchanged shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.8, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of fractional Parent shares) in accordance with this Agreement. If any fractional shares Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock or the payment of cash in lieu of fractional shares, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as contemplated by this Section 1.10Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(cb) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of any fractional shares share shall be paid to any such holder pursuant to Section 1.10(f)holder, until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to surrenders such number of whole shares of Parent Common Company Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof this Section 1.8 (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) at which time such holder shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of all such dividends and distributions and such cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional sharespayment).
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Qualcomm Inc/De)
Exchange of Certificates. (aA) Prior On or prior to the Effective Time, as required by subsections (b) and (c) belowClosing Date, Parent shall deliver to its transfer agent, or select a depository reputable bank or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory company to act as exchange agent in the Company Merger (the "EXCHANGE AGENT") for ). As soon as practicable after the benefit of Effective Time, Parent shall deposit with the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUND."), in exchange for outstanding Shares.
(bB) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5 (and cash in lieu of any fractional share of Parent Common Stock), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(C) Notwithstanding anything to the contrary contained in this Agreement, no shares of Parent Common Stock (or certificates therefor) shall be issued in exchange for any Company Stock Certificate to any Person who may be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company until such Person shall have delivered to Parent and the Company a duly executed Affiliate Agreement as contemplated by this Section 1.105.10.
(cD) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable escheat or similar laws, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(gE) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon date 180 calendar days after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(hF) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(G) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Med-Design Corp)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.8, 1 and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(d). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as practicable after the Effective Time, the Exchange Agent shall will mail to each holder the holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon Subject to Section 1.5(d), upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5(a)(iii), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock (and cash in lieu of any fractional shares share of Parent Common Stock Stock) as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common 1. If any Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretiondiscretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the delivery owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a suitable bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or indemnitythe Surviving Corporation with respect to such Company Stock Certificate.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(gc) Any portion of the Exchange Fund that remains undistributed to the former stockholders of the Company upon as of the one year anniversary date 180 days after the Effective Time date on which the Merger becomes effective shall be delivered to Parent upon demand, and any former stockholders of the Company who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(hd) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Capital Stock such amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares Company Common Stock for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior At or prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver authorize the issuance of and shall make available to its transfer agentComputershare Trust Company, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company N.A., Parent’s exchange agent (the "EXCHANGE AGENT") “Exchange Agent.”), for the benefit of the holders of Shares Company Stock Certificates and holders of Company Stock issued by book entry for exchange in accordance with this Article 1: ARTICLE I, (i) certificates representing the appropriate a sufficient number of shares of Parent Common Stock issuable Stock, to be issued by book-entry transfer, for payment of the Merger Consideration pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify1.4(a) and (ii) instructions sufficient cash for use in effecting the surrender payment of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock in accordance with Section 1.8. Such amount of cash and shares of Parent Common Stock, together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to as contemplated the “Conversion Fund.” Parent shall be solely responsible for the payment of any fees and expenses of the Exchange Agent.
(b) Within two Business Days after the Closing Date, Parent shall cause the Exchange Agent to mail to each holder of record of Company Stock Certificates (excluding Dissenting Shares) a letter of transmittal (“Letter of Transmittal”) in a form as Parent and the Company mutually agree, which specifies, among other things, that delivery shall be effected, and risk of loss and title to Company Stock Certificates shall pass, only upon delivery of such certificates to the Exchange Agent, together with instructions for use in effecting the surrender of the Company Stock Certificates pursuant to this Agreement. 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 Letters of Transmittal, provided that such Share Representative certifies that each such Letter of Transmittal covers all the shares of Company Common Stock held by each such Share Representative for a particular beneficial owner. Any holder of Company Stock issued exclusively by book entry shall not be required to deliver a Company Stock Certificate but shall be required to deliver an executed Letter of Transmittal to receive the Merger Consideration with respect to such book entry shares of Company Common Stock. As used in this Section 1.10Agreement, “Business Day.” means any day except Saturday, Sunday and any day on which banks in Mattoon, Illinois, or Burlington, Iowa, are authorized or required by law or other government action to close.
(c) Upon proper surrender of a Company Stock Certificate for exchange to the Exchange Agent or delivery of affidavit of lost stock certificate as contemplated in Section 1.7(g) herein, together with a properly completed Letter of Transmittal, duly executed, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor the Merger Consideration deliverable in respect of the shares of Company Common Stock represented by such Company Stock Certificate; thereupon such Company Stock Certificate shall forthwith be cancelled. No interest will be paid or accrued on the Merger Consideration deliverable upon surrender of a Company Stock Certificate.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time.
(e) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a and payable to the holders of record date thereof after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate until the holder thereof shall surrender such Company Stock Certificate in accordance with this ARTICLE I. Promptly after the surrender of a Company Stock Certificate in accordance with this ARTICLE I, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of Parent Common Stock into which the shares of Company Common Stock represented by such Company Stock Certificate were converted at the Effective Time pursuant to Section 1.4. No holder of an unsurrendered Company Stock Certificate shall be entitled, until the surrender of such Company Stock Certificate, to vote the shares of Parent Common Stock represented thereby, and no cash payment in lieu into which such holder’s Company Common Stock shall have been converted.
(f) Any portion of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder Conversion Fund that remains unclaimed by the shareholders of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there Company twelve months after the Effective Time shall be paid to the record holder Surviving Company, or its successors in interest. Any shareholders of the certificates representing whole shares Company who have not theretofore complied with this ARTICLE I shall thereafter look only to the Surviving Company, or its successors in interest, for the issuance of Parent Common Stock issued in exchange therefor without interest (i) the amount Merger Consideration and the payment of any cash payable in lieu of a any fractional share shares deliverable in respect of Parent such shareholders’ shares of Company Common Stock, as well as any accrued and unpaid dividends or distributions on such Merger Consideration. Notwithstanding the foregoing, none of Parent, the Surviving Company, the Exchange Agent or any other Person shall be liable to any former holder of shares of Company Common Stock for any amount delivered in good faith to which such holder is entitled a public official pursuant to Section 1.10(f) and the amount of dividends applicable abandoned property, escheat or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stocksimilar laws.
(dg) In the event that any Company Stock Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof Person claiming such shares Company Stock Certificate to be lost, stolen or destroyed and the posting by such Person of Parent Common a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate, and in accordance with this ARTICLE I, the Merger Consideration and cash in lieu of any fractional shares, if any, as may be required shares deliverable in respect thereof pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stockapplicable.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Exchange Agent (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.8, 1 and (ii) cash sufficient to be paid make payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.5(c). The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such cash shares, are hereinafter referred to collectively as the "EXCHANGE FUNDExchange Fund."), in exchange for outstanding Shares.
(b) Promptly As soon as practicable after the Effective Time, the Exchange Agent shall will mail to each holder the holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery of Company Stock Certificates shall be effected effected, and risk of loss and title to the Company Stock Certificates shall pass pass, only upon delivery of the such Company Stock Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon Subject to Section 1.5(c), upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (1) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 1.5(a)(iii), and (2) the Company Stock Certificate so surrendered shall forthwith be canceled. Until surrendered as contemplated by this Section 1.7, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 1. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate. Neither Parent nor the Exchange Agent shall require the owner of such lost, stolen or destroyed Company Stock Certificate to provide a bond as -3- indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate. In the event of a transfer of ownership of Shares that Company Capital Stock which is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate certificate representing such Shares Company Capital Stock is presented to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer transfer, and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the former stockholders of the Company upon six months after the one year anniversary date on which the Effective Time Merger becomes effective shall be delivered to Parent upon demand, and any former stockholders of the Company who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and Stock, cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(hd) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Capital Stock such amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares Company Common Stock for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Pharmacopeia Inc)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit, or shall cause to be deposited, with a depository bank or trust institution of recognized standing selected company designated by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") “Exchange Agent”), for the benefit of the holders of Shares shares of Company Common Stock, for exchange in accordance with this Article 1: II through the Exchange Agent, (i) certificates representing the appropriate a number of shares of Parent Common Stock issuable pursuant equal to Section 1.8the Exchange Ratio multiplied by the number of outstanding shares of Company Common Stock held by holders of record other than Parent, Merger Sub or any wholly-owned Subsidiary of Parent or Merger Sub, rounded down to the nearest whole number and (ii) an amount of cash sufficient to deliver to holders of Company Common Stock the Cash Merger Consideration. For purposes of such deposit, Parent shall assume that there will not be paid any fractional shares of Parent Common Stock. Parent further agrees to provide to the Exchange Agent, from time to time as needed, immediately available funds sufficient to pay cash in lieu of fractional shares of pursuant to Section 2.04(e) and any dividends and other distributions pursuant to Section 2.04(c). Any cash and certificates representing Parent Common Stock (such shares of Parent Common Stock and such cash are deposited with the Exchange Agent shall hereinafter be referred to as the "EXCHANGE FUND")“Exchange Fund.” The Exchange Agent shall, in exchange pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid per share of Company Common Stock pursuant to Section 2.01 out of the Exchange Fund. Except as contemplated by Sections 2.04(c) and 2.04(e) hereof, the Exchange Fund shall not be used for outstanding Sharesany other purpose.
(b) Promptly (and in any event within five (5) Business Days) after the Effective Time, Parent shall cause the Exchange Agent shall to mail to each holder of record of a certificate formerly representing Company Common Stock (a “Certificate”), other than Parent or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares Merger Sub or any wholly-owned Subsidiary of Parent Common Stock pursuant to Section 1.8: or Merger Sub, (i) a letter of transmittal (which that shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon proper delivery of the Certificates to the Exchange Agent and Agent, which letter shall be in such customary form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the such Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly executedexecuted and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole (A) one or more shares of Parent Common Stock andrepresenting, if applicablein the aggregate, a check representing the cash consideration to which such holder may be entitled on account whole number of a fractional share of Parent Common Stock shares that such holder has the right to receive pursuant to Section 2.01(a)(i) (after taking into account all shares of Company Common Stock then held by such holder), (B) the provisions Cash Merger Consideration which such holder has the right to receive pursuant to Section 2.01(a)(i) in respect of this Article 1the shares represented by such Certificate and/or (C) a check in the amount equal to the cash that such holder has the right to receive with respect to any fractional shares of Parent Common Stock pursuant to Section 2.04(e) and dividends and other distributions pursuant to Section 2.04(c), if any, and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or will accrue on any cash payable pursuant to Section 2.01(a)(i), Section 2.04(c) or Section 2.04(e). In the event of a transfer of ownership of Shares that Company Common Stock which is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock Merger Consideration may be issued and paid with respect to such Company Common Stock to such a transferee if the Certificate representing such Shares shares of Company Common Stock is presented to the Exchange Agent in accordance with this Section 2.04(b), accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock Stock, with a record date after the Effective Time Time, shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented therebyCertificate, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f2.04(e), unless and until the holder of record of such Certificate shall surrender such CertificateCertificate in accordance with Section 2.04(b). Subject to the effect of escheat, Tax or other applicable lawsLaws, following surrender of any such Certificate Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor therefor, without interest interest, (i) promptly, the amount of any cash payable in lieu of with respect to a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f2.04(e) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date date, the amount of dividends or other distributions distributions, with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender occurring after surrender, payable with respect to such whole shares of Parent Common Stock.
(d) In The Merger Consideration delivered upon surrender of the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares Certificates in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c2.04(c) or 1.10(fSection 2.04(e)) shall be deemed to have been issued paid in full satisfaction of all rights pertaining to such Shares and there shall be no further registration share of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1Common Stock.
(fe) No fractions certificates or scrip representing fractional shares of a share Parent Common Stock, or book-entry credit of the same, shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to Parent Common Stock shall be issued in payable on or with respect to any fractional share and such fractional share interests shall not entitle the Mergerowner thereof to any rights of a stockholder of Parent. For purposes of this Section 2.04(e), but in all fractional shares to which a single record holder would be entitled shall be aggregated and calculations shall be rounded to the fourth decimal point. In lieu thereof of any such fractional share of Parent Common Stock, each holder of Shares Company Common Stock otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates will be entitled to receive from the Exchange Agent a cash payment in an amount equal to the product of cash (without interesti) determined such fractional part of a share of Parent Common Stock multiplied by multiplying (ii) an amount equal to the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment average of the cash consideration closing sale prices for Parent Common Stock on the NYSE, as reported in lieu The Wall Street Journal, Northeastern edition, for each of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by ten consecutive trading days ending with the issuance of fractional sharessecond complete trading day prior to the Effective Time.
(gf) Any portion of the Exchange Fund that which remains undistributed to the stockholders holders of the Company upon the one year anniversary Common Stock for six months after the Effective Time shall be delivered to Parent Parent, upon demand, and, from and after such delivery to Parent, any stockholders holders of the Company Common Stock who have not theretofore complied with this Article 1 II shall thereafter look only to Parent for payment the Merger Consideration payable in respect of their claim for Parent such shares of Company Common Stock and Stock, any cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock to which they are entitled pursuant to Section 2.04(e) and any applicable dividends or other distributions with respect to Parent Common StockStock to which they are entitled pursuant to Section 2.04(c), in each case, without any interest thereon.
(hg) Neither Parent Parent, Merger Sub, the Surviving Corporation, the Exchange Agent nor the Company shall be liable to any holder of Shares shares of Company Common Stock for any such shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar lawLaw.
(h) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect of the shares of Company Common Stock represented by such Certificate, any cash in lieu of fractional shares of Parent Common Stock to which the holders thereof are entitled pursuant to Section 2.04(e) and any dividends or other distributions to which the holders thereof are entitled pursuant to Section 2.04(c), in each case, without any interest thereon.
(i) Parent or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Common Stock such amounts as Parent or the Exchange Agent are required to deduct and withhold under the Code, or any Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld by Parent or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Common Stock in respect of whom such deduction and withholding was made by Parent or the Exchange Agent.
(j) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent upon termination of the Exchange Fund pursuant to Section 2.04(f). In the event the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Exchange Agent hereunder, Parent shall promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such payment obligations.
Appears in 1 contract
Sources: Merger Agreement (Inamed Corp)
Exchange of Certificates. (a) Prior to the Effective Time, Parent’s transfer agent shall act as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company exchange agent (the "EXCHANGE AGENT"“Exchange Agent”) for in the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding SharesMerger.
(b) Promptly after the Effective Time, Parent shall make available to the Exchange Agent shall for exchange in accordance with this Article I, through such reasonable procedures as Parent may adopt, the shares of Parent Common Stock issuable pursuant to Section 2.6(a) in exchange for shares of Company Common Stock outstanding immediately prior to the Effective Time.
(c) As soon as reasonably practicable after the Effective Time, the Exchange Agent will mail to each holder of record of a certificate or certificates that (the “Certificates”) which immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and shares of Company Common Stock, whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: 2.6(a), (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery receipt of the Certificates to by the Exchange Agent Agent, and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Section 2.6, and the Certificate so surrendered shall forthwith be canceled. In Until so surrendered, each outstanding Certificate that, prior to the event Effective Time, represented shares of a transfer Company Common Stock will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, to evidence the ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of full shares of Parent Common Stock may be issued to a transferee if the Certificate representing into which such Shares is presented shares of Company Common Stock shall have been so converted in accordance with Section 2.6.
(d) Notwithstanding anything to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by contrary contained in this Section 1.10Agreement, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing no shares of Parent Common Stock (or certificates therefor) shall be issued in exchange for any Certificate to any person who may be an “affiliate” (as that term is used in Rule 145 under the Securities Act) of Company until such person shall have delivered to Parent and cash Company a duly executed Affiliate Agreement in lieu of any fractional shares of Parent Common Stock substantially the form attached hereto as contemplated by this Section 1.10.Exhibit B.
(ce) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall will be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), thereby until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable lawslaw, following surrender of any such Certificate Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor therefor, without interest (i) interest, at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid payable (but for the provisions of this Section 2.7(e)) with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and If any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares certificate for shares of Parent Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it will be a condition of the issuance thereof that the Certificate so surrendered will be properly endorsed and otherwise in proper form for transfer and that the person requesting such exchange will have paid to Parent or any agent designated by it any transfer or other taxes required by reason of the issuance of a certificate for shares of Parent Common Stock in any name other than that of the registered holder of the Certificate surrendered, or established to the satisfaction of Parent or any agent designated by it that such tax has been paid or is not payable.
(or dividends or distributions with respect theretog) or cash from Notwithstanding anything to the contrary in this Section 2.7, none of the Exchange Fund delivered Agent, the Surviving Corporation, Parent or any party hereto shall be liable to any person for any amount properly paid to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.. Table of Contents
Appears in 1 contract
Sources: Merger Agreement (Saflink Corp)
Exchange of Certificates. (a) Prior to the Closing Date, Parent shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Within one (1) business day after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agentdeposit with the Exchange Agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: Shares, (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to this Section 1.81, and (ii) cash representing the amount of cash payable in respect of the Shares pursuant to be paid this Section 1, and (iii) cash sufficient to make payments in lieu of fractional shares of Parent Common Stock in accordance with Section 1.5(c) (such cash and shares of Parent Common Stock and such cash are hereinafter Stock, together with any dividends or distributions with respect thereto, being referred to as the "EXCHANGE FUNDExchange Fund"), in exchange for outstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall will mail to each holder the record holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Company Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) specify (including a provision confirming that delivery of Company Stock Certificates shall be effected, and risk of loss and title to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration. Upon surrender of a Company Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent or Parent, (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1Merger Consideration, and (B) the Company Stock Certificate so surrendered shall forthwith be immediately canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7, each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the Merger Consideration and any distribution or dividend the record date for which is after the Effective Time. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate representing shares of Parent Common Stock and cash in lieu or the payment of any fractional shares cash portion of the Merger Consideration, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent Common may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock as contemplated by this Section 1.10Certificate, and, in such case, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificates the Merger Consideration.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment that such holder has the right to receive in lieu of fractional shares the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be paid to any such holder pursuant to Section 1.10(f)entitled, until the holder of record of such Certificate shall surrender such Certificate. Subject subject to the effect of applicable lawsescheat or similar Legal Requirements, following surrender of any to receive all such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor dividends and distributions, without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stockinterest).
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders holders of Company Stock Certificates as of the Company upon the date one year anniversary hundred eighty (180) days after the Effective Time shall be delivered to Parent upon demand, and any stockholders holders of the Company Stock Certificates who have not theretofore complied surrendered their Company Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent for payment satisfaction of their claim claims for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect Merger Consideration to Parent Common Stockwhich such holder is entitled pursuant hereto.
(he) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(f) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by in compliance with any applicable abandoned propertyproperty law, escheat law or similar lawLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Exchange of Certificates. (a) Prior to As promptly as practicable after the Effective Time (but in any event within sixty (60) days following the Effective Time, as required by subsections (b) and (c) below), Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1shall: (i) certificates representing cause the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, 1.5(a)(i) to be issued in book-entry form; and (ii) cash to be paid make payments in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"in accordance with Section 1.5(c), in exchange for outstanding Shares.
(b) Promptly As promptly as practicable after the Effective Time, Parent will mail or otherwise provide to the Exchange Agent shall mail to each holder Persons who were record holders of record of a certificate or certificates that Company Stock Certificates immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates cash in respect of fractional shares pursuant to Section 1.5(c), if any, and book-entry shares representing shares of Parent Common Stock. Upon surrender of a Company Stock Certificate to Parent for cancellation to the Exchange Agentexchange, together with such letter of transmittal duly executed, other documents as may be reasonably required by Parent: (A) the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor a certificate therefor, book-entry shares representing that the number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, Section 1.5(a)(i) (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)); and (B) the Company Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7(b), each Company Stock Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive upon such surrender the certificate representing book-entry shares of Parent Common Stock pursuant to the provisions of Section 1.5(a)(i) (and cash in lieu of any fractional shares share of Parent Common Stock pursuant to Section 1.5(c)). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated by this Section 1.10a condition to the payment of any cash or the issuance of any book-entry shares representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate lost affidavit with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented therebythat such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and no distributions, without interest).
(d) Any holders of Company Stock Certificates who have not surrendered their Company Stock Certificates in accordance with this Section 1.7 as of the date 180 days after the date on which the Merger becomes effective shall thereafter look only to Parent for satisfaction of their claims for shares of Parent Common Stock pursuant to the provisions of Section 1.5(a)(i), cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f1.5(c) and the amount of any dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(de) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares Each of Parent Common Stock and cash in lieu of fractional shares, if any, the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required pursuant to this Agreement; providedbe deducted or withheld from such consideration under the Code or any provision of state, however, that Parent local or non-U.S. Tax law or under any other applicable Legal Requirement. To the Exchange Agent may, in its discretion, require the delivery of a suitable bond extent such amounts are so deducted or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance withheld and paid to or deposited with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) appropriate Governmental Body, such amounts shall be deemed treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been issued in full satisfaction of all rights pertaining paid. Parent shall take commercially reasonable efforts to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for reduce or eliminate any reason, they shall be canceled and exchanged as provided in this Article 1required withholding.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares for Company Common Stock or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned propertyproperty law, escheat law or other similar lawLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Lipocine Inc.)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required all shares of Media Resolutions Common Stock that are outstanding immediately prior thereto will, by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit virtue of the holders Merger and without further action, cease to exist, and each share of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Media Resolutions Common Stock issuable pursuant to Section 1.8, and (ii) cash to will be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive from Edge that portion of the Merger Consideration, subject to the withholding provisions of Section 1.03, that each such share bears to the total of all shares of Parent Media Resolutions Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected issued and risk of loss and title to the Certificates shall pass only upon delivery outstanding as of the Certificates to Effective Time (the Exchange Agent "Pro Rata Portion").
(b) At and shall after the Effective Time, each certificate representing outstanding shares of Media Resolutions Common Stock will represent the number of shares of Edge Common Stock into which such shares of Media Resolutions Common Stock have been converted, and such shares of Edge Common Stock will be deemed registered in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender name of the Certificates in exchange for certificates representing shares holder of Parent Common Stocksuch certificate. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executedEffective Time, the holder of shares of Media Resolutions Common Stock will surrender (i) the certificates of such Certificate shares (the "Media Resolutions Certificates") to Edge for cancellation or (ii) an ------------------------------ affidavit of lost (or non-issued) certificate and agreement to indemnify in form satisfactory to Edge (an "Affidavit"). Further, all rights to acquire --------- capital stock of Media Resolutions (whether in the form of options, warrants, or rights to convert securities) shall be entitled terminated upon the Effective Time, such that upon the payment of the Merger Consideration, Edge will hold 100% of the capital stock of Media Resolutions and no rights or options to purchase or receive in exchange therefor a certificate representing that number of whole any shares of Parent Media Resolutions' capital stock shall be outstanding. At Closing, Edge will deliver such Holder's Pro Rata Portion of the Cash Consideration less the amount withheld pursuant to Section 1.03 and as soon as practicable after the Effective Time and receipt of Media Resolutions Certificates and of any Affidavits, will issue to such surrendering holder certificate(s) representing such holder's Pro Rata Portion of the Stock Consideration and any cash for fractional shares payable under Section 1.02.
(c) All shares of Edge Common Stock (and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued delivered upon the surrender for exchange of Shares Media Resolutions Certificates in accordance with the terms hereof (including any cash paid pursuant will be delivered to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and the registered holder. After the Effective Time, there shall will be no further registration of transfers of the shares of Media Resolutions Common Stock on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective TimeMedia Resolutions. If, after the Effective Time, Media Resolutions Certificates are presented to the Surviving Company for transfer or for any other reason, they shall will be canceled and exchanged as provided and certificates for Edge Common Stock will be delivered pursuant to the terms and conditions set forth in this Article 1Section 5.02.
(fd) No fractions of a share of Parent Until certificates representing Media Resolutions Common Stock shall outstanding prior to the Merger are surrendered pursuant to Section 5.02 (b) above, such certificates will be issued in deemed, for all purposes, to evidence ownership of (i) the Merger, but in lieu thereof each holder number of Shares otherwise entitled to a fraction shares of a share of Parent Edge Common Stock shall upon surrender into which the shares of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Media Resolutions Common Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for considerationwill have been converted, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed subject to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered obligation to Parent upon demandwithhold a portion thereof as required hereby, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and (ii) if applicable, cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior Before the Effective Time, Greenwich shall appoint the Exchange Agent to act as the exchange agent in connection with the Merger. Not less than thirty (30) days prior to the Effective Time, UNC and Greenwich shall jointly prepare written instructions (which shall be included as required an exhibit to the Joint Proxy Statement/Prospectus) to each holder of UNC Common Stock Equivalents setting forth the terms of this Agreement and the method by subsections which each such holder may elect to receive Merger Consideration in the form of shares of Greenwich Class B Stock and Cash Merger Consideration. From and after the Effective Time, each holder of a certificate which immediately before the Effective Time represented outstanding shares of UNC Common Stock (ba "UNC Certificate") shall be entitled to receive in exchange therefor, upon surrender thereof to the Exchange Agent (i) payment of the applicable amount of Cash Merger Consideration attributable to such shares of Common Stock Equivalents, and (cii) belowa certificate or certificates representing the number of whole shares of Greenwich Class B Stock into which such holder's Common Stock Equivalents were converted in the Merger (together with cash in lieu of fractional shares). Immediately before the Effective Time, Parent shall Greenwich will deliver to its transfer agentthe Exchange Agent, or a depository or in trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of UNC Common Stock Equivalents, shares of Parent Common Greenwich Class B Stock issuable pursuant (together with cash in immediately available funds in an amount sufficient to Section 1.8, pay the aggregate Cash Merger Consideration and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred shares, as provided in Section 2.6) necessary to as make the "EXCHANGE FUND"), in exchange for outstanding Sharesexchanges contemplated hereby on a timely basis.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of record UNC Common Stock Equivalents as of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) Time, a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates each UNC Certificate shall pass pass, only upon proper delivery of the Certificates such UNC Certificate to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the UNC Certificates in exchange for certificates representing payment of the shares of Parent Common StockGreenwich Class B Stock (together with cash in lieu of fractional shares) and the applicable amount of Cash Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange AgentAgent of a UNC Certificate, together with such letter of transmittal duly executed, and any other required documents, the holder of such UNC Certificate shall be entitled to receive in exchange therefor a certificate representing that the applicable number of whole shares of Parent Common Greenwich Class B Stock and, if applicable, a check representing the (together with cash consideration to which in lieu of fractional shares) and such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1holder's applicable Cash Merger Consideration, and the such UNC Certificate so surrendered shall forthwith be canceled. In the event No holder of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each UNC Certificate shall be deemed at any time after the Effective Time to represent only the right entitled to receive any dividend or other distribution from Greenwich with respect to the shares of Greenwich Class B Stock receivable upon surrender of such surrender the UNC Certificate until such holder's UNC Certificate has been surrendered for a certificate or certificates representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time Greenwich Class B Stock. Upon such surrender, there shall be paid to the holder the amount of any unsurrendered Certificate dividends or other distributions (without interest) which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Greenwich Class B Stock represented by the certificates issued upon surrender. If payment of the cash portion of the Merger Consideration per share of UNC Common Stock and/or per share of UNC Series B Preferred Stock or delivery of Greenwich Class B Stock is to be made to a person other than the person in whose name the UNC Certificate surrendered is registered or if any certificate for shares of Greenwich Class B Stock is to be issued in a name other than that in which the UNC Certificate surrendered therefor is registered, it shall be a condition of such delivery or issuance that the UNC Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and (ii) at that the appropriate payment date the amount of dividends person requesting such delivery or issuance shall pay any transfer or other distributions taxes required by reason of such delivery or issuance to a person other than the registered holder of the UNC Certificate surrendered or establish to the satisfaction of Greenwich that such tax has been paid or is not applicable. Until surrendered in accordance with a record date after the Effective Time but prior provisions of this Section 2.7, each UNC Certificate shall represent for all purposes only the right to surrender and a receive payment date subsequent to surrender payable with respect to such whole of the shares of Parent Common Stock.
Greenwich Class B Stock (d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares) and cash portion of the Merger Consideration as provided in Section 2.2, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitywithout any interest thereon.
(ec) All shares of Parent Common Stock issued upon After the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Company UNC of the Shares shares of UNC Common Stock or shares of UNC Series B Preferred Stock that were outstanding immediately prior to before the Effective Time. If, after the Effective Time, UNC Certificates are presented to the Surviving Company Greenwich or UNC for any reasontransfer, they shall be canceled cancelled and exchanged for payment of the shares of Greenwich Class B Stock (and cash in lieu of fractional shares) and applicable amount of per share cash Merger Consideration as provided in Section 2.3, in accordance with the procedures set forth in this Article 1Section 2.7.
(fd) No fractions Any shares of a share of Parent Common Greenwich Class B Stock shall be issued in (and any accrued dividends and distributions thereon), and any cash delivered to the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that Exchange Agent for payment of the applicable per share cash consideration Merger Consideration or payment in lieu of issuing fractional shares was not separately bargained for considerationshares, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused remain unclaimed by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the former stockholders of UNC on the Company upon the one year first anniversary of the Effective Time shall be delivered by the Exchange Agent to Parent upon demand, and any Greenwich. Any former stockholders of the Company UNC who have not theretofore complied with this Article 1 Section 2.7 shall thereafter look only to Parent Greenwich for payment satisfaction of their claim for Parent Common Stock and cash the consideration set forth in lieu the Certificate of fractional sharesMerger, as the case may be, and without any applicable dividends or distributions with respect to Parent Common Stockinterest thereon.
(he) Neither Parent Notwithstanding the foregoing, neither Greenwich nor the Company UNC shall be liable to any holder of Shares for shares of Parent UNC Common Stock or UNC Series B Preferred Stock for any payment of the per share cash portion of the Merger Consideration or for any shares of Greenwich Class B Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, SENTRY shall cause the Exchange Agent shall to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding VIDEO Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates such VIDEO Shares shall pass pass, only upon delivery of the VIDEO Certificates representing such VIDEO Shares to the Exchange Agent and which shall be in such form and have such other customary provisions as Parent and the Company SENTRY may reasonably specify) specify and (ii) instructions for use in effecting the surrender of the such VIDEO Certificates in exchange for certificates representing shares of Parent SENTRY Common StockStock and cash in lieu of fractional shares. Upon surrender of a VIDEO Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal transmittal, duly executedexecuted and completed in accordance with the instructions thereto, the holder of VIDEO Shares represented by such VIDEO Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Parent SENTRY Common Stock and, if applicable, and (y) a check representing the amount of cash consideration to in lieu of fractional shares (in accordance with Section 3.6(f) below), if any, and unpaid dividends and distributions, if any, which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive in respect of the VIDEO Certificate surrendered pursuant to the provisions of this Article 1III, after giving effect to any required withholding tax, and the VIDEO Shares represented by the VIDEO Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to holders of VIDEO Shares. In the event of a transfer of ownership of VIDEO Shares that which is not registered in the transfer records of the CompanyVIDEO, a certificate representing the proper number of shares of Parent SENTRY Common Stock Stock, together with a check for the cash to be paid in lieu of fractional shares (in accordance with Section 3.6(f) below), may be issued to such a transferee if the VIDEO Certificate representing such VIDEO Shares is presented to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer and by to evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time .
(c) Promptly after the Effective Time Time, SENTRY shall cause the Exchange Agent to represent mail to each holder of record of KNOGO Shares (i) a letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to such KNOGO Shares shall pass, only upon delivery of the right KNOGO Certificates representing such KNOGO Shares to receive upon the Exchange Agent and which shall be in such form and have such other provisions as SENTRY may reasonably specify and (ii) instructions for use in effecting the surrender the certificate of such KNOGO Certificates in exchange for certificates representing shares of Parent SENTRY Common Stock, SENTRY Class A Preferred Stock and cash in lieu of any fractional shares. Upon surrender of a KNOGO Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the holder of KNOGO Shares represented by such KNOGO Certificate 7 shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of SENTRY Common Stock, (y) a certificate representing that number of whole shares of SENTRY Class A Preferred Stock, and (z) a check representing the amount of cash in lieu of fractional shares (in accordance with Section 3.6(f) below), if any, and unpaid dividends and distributions, if any, which such holder has the right to receive in respect of Parent the KNOGO Certificate surrendered pursuant to the provisions of this Article III, after giving effect to any required withholding tax, and the KNOGO Shares represented by the KNOGO Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to holders of KNOGO Shares. In the event of a transfer of ownership of KNOGO Shares which is not registered in the transfer records of KNOGO, a certificate representing the proper number of shares of SENTRY Common Stock as contemplated and SENTRY Class A Preferred Stock and a check for the cash to be paid in lieu of fractional shares (in accordance with Section 3.6(f) below), may be issued to such a transferee if the KNOGO Certificate representing such KNOGO Shares is presented to the Exchange Agent, accompanied by this Section 1.10all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid.
(cd) No Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared or made after the Effective Time on SENTRY Common Stock or SENTRY Class A Preferred Stock shall be paid with respect to Parent Common Stock with any shares represented by a record date after VIDEO or KNOGO Certificate, as the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f)case may be, until the holder of record of such Certificate shall surrender such Certificateis surrendered for exchange as provided herein. Subject to the effect of applicable laws, following surrender of any such Certificate VIDEO or KNOGO Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent SENTRY Common Stock or SENTRY Class A Preferred Stock issued in exchange therefor therefor, without interest interest, (i) at the amount time of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid payable with respect to such number of whole shares of Parent SENTRY Common Stock or SENTRY Class A Preferred Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent SENTRY Common Stock or SENTRY Class A Preferred Stock, less the amount of any withholding taxes which may be required thereon.
(de) At or after the VIDEO Effective Time, there shall be no transfers on the stock transfer books of VIDEO of the VIDEO Shares which were outstanding immediately prior to the VIDEO Effective Time. At or after the KNOGO Effective Time, there shall be no transfers on the stock transfer books of KNOGO of the KNOGO Shares which were outstanding immediately prior to the KNOGO 8 Effective Time. If, after the Effective Time, VIDEO or KNOGO Certificates are presented to SENTRY, they shall be canceled and exchanged for certificates for shares of SENTRY Common Stock (and SENTRY Class A Preferred Stock in the case of KNOGO Shares) and cash in lieu of fractional shares (in accordance with Section 3.6(f) below), if any, deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth in this Article III. Certificates surrendered for exchange by any person constituting an "affiliate" of KNOGO or VIDEO for purposes of Rule 145(c) under the Securities Act of 1933, as amended (the "Securities Act"), shall not be exchanged until SENTRY has received a written agreement from such person as provided in Section 6.9.
(f) No fractional shares of SENTRY Common Stock or SENTRY Class A Preferred Stock shall be issued pursuant hereto. As promptly as possible following the Effective Time, the Exchange Agent shall determine the excess of (i)(A) the number of full shares of SENTRY Common Stock delivered to the Exchange Agent by SENTRY pursuant to Section 3.6(a) over (B) the number of full shares of SENTRY Common Stock to be distributed to the holders of VIDEO Shares and KNOGO Shares pursuant to Sections 3.6(b) and 3.6(c) (such excess being herein referred to as the "Excess Common Shares"), and (ii)(A) the number of full shares of SENTRY Class A Preferred Stock delivered to the Exchange Agent by SENTRY pursuant to Section 3.6(a) over (B) the number of full shares of SENTRY Class A Preferred Stock to be distributed to the holders of KNOGO Shares pursuant to Sections 3.6(c) (such excess being herein referred to as the "Excess Preferred Shares"). As soon after the Effective Date as practicable, the Exchange Agent, as agent for the holders of SENTRY Common Stock and SENTRY Class A Preferred Stock, shall sell the Excess Common Shares and Excess Preferred Shares at the then prevailing prices on the NASDAQ Stock Market's National Market ("NASDAQ"), or such other national securities exchange as is applicable, through one or more member firms of NASDAQ, or other national securities exchange, as the case may be, in round lots to the extent practicable. SENTRY shall pay all commissions, transfer taxes and other out-of-pocket transactions costs, including the expenses and compensation of the Exchange Agent incurred in connection with such sale of the Excess Common Shares and Excess Preferred Shares. Until the proceeds of such sale or sales have been distributed to the holders of SENTRY Common Stock or SENTRY Class A Preferred Stock entitled to receipt of such proceeds, the Exchange Agent shall hold such proceeds in trust for those holders of SENTRY Common Stock and SENTRY Class A Preferred Stock. The Exchange Agent shall determine the portion of the proceeds from the sale of (i) the Excess Common Shares (the "Excess Common Shares Proceeds") to which each holder of SENTRY Common Stock is entitled, if any, by multiplying the amount of the Excess Common Shares Proceeds by a fraction, the numerator of which is the amount of the fractional share interest to which such holder of SENTRY Common Stock is entitled, and the denominator of which is the aggregate 9 amount of fractional share interests to which all of the holders of SENTRY Common Stock are entitled, and (ii) the Excess Preferred Shares (the "Excess Preferred Shares Proceeds") to which each holder of SENTRY Class A Preferred Stock is entitled, if any, by multiplying the amount of the Excess Preferred Shares Proceeds by a fraction, the numerator of which is the amount of the fractional share interest to which such holder of SENTRY Class A Preferred Stock is entitled, and the denominator of which is the aggregate amount of fractional share interests to which all of the holders of SENTRY Class A Preferred Stock are entitled. As soon as practicable after the sale of the Excess Common Shares and the Excess Preferred Shares and the determination of the amount of cash, if any, to be paid to each holder of SENTRY Common Stock and SENTRY Class A Preferred Stock in lieu of any fractional share interests, the Exchange Agent shall distribute such amounts to the holders of SENTRY Common Stock and SENTRY Class A Preferred Stock entitled thereto and who have theretofore delivered VIDEO Certificates or KNOGO Certificates for SENTRY Company Common Stock and/or SENTRY Class A Preferred Stock, as the case may be, pursuant to this Article III.
(g) Any portion of the Exchange Fund (including the proceeds of any investments thereof and any shares of SENTRY Common Stock and SENTRY Class A Preferred Stock) that remains unclaimed by the former stockholders of KNOGO or VIDEO one year after the Effective Time shall be delivered to SENTRY. Any former stockholder of KNOGO or VIDEO who has not theretofore complied with this Article III shall thereafter look only to SENTRY for payment of their shares of SENTRY Common Stock, SENTRY Class A Preferred Stock, cash in lieu of fractional shares and unpaid dividends and distributions on the SENTRY Common Stock and SENTRY Class A Preferred Stock deliverable in respect of each VIDEO or KNOGO Share such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon.
(h) None of VIDEO, KNOGO, SENTRY, VMC, SMC, the Exchange Agent or any other person shall be liable to any former holder of VIDEO Shares or KNOGO Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(i) In the event that any VIDEO or KNOGO Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof person claiming such Certificate to be lost, stolen or destroyed and, if required by SENTRY, the posting by such person of a bond in such reasonable amount as SENTRY may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the shares of Parent SENTRY Common Stock (and SENTRY Class A Preferred Stock in the case of KNOGO Shares) and cash in lieu of fractional sharesshares (in accordance with Section 3.6(f) below), if anyand 10 unpaid dividends and distributions on shares of SENTRY Common Stock (and SENTRY Class A Preferred Stock in the case of KNOGO Shares) as provided in this Section 3.6, as may be required deliverable in respect thereof pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (Video Sentry Corp)
Exchange of Certificates. (a) Prior to As of the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its deposit with Parent's transfer agent, agent or a depository such other bank or trust institution of recognized standing selected company designated by Parent and Acquisition and reasonably satisfactory acceptable to the Company (the "EXCHANGE AGENTExchange Agent") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate evidencing a number of shares of Parent Common Stock issuable pursuant equal to Section 1.8, the Aggregate Stock Number and (ii) cash in the amount equal to the sum of the Aggregate Cash Amount and the aggregate Kansas Sale Consideration (such certificates for shares of Parent Common Stock and cash being hereinafter referred to as the "Exchange Fund"). From time to time as necessary, Parent shall deposit with the Exchange Agent cash to be paid in lieu of fractional shares as contemplated by Section 2.6 and any dividends or other distributions to which holders of Parent Common Stock (such shares of Parent Common Stock and such cash Certificates are hereinafter referred entitled pursuant to Section 2.7(d). The Exchange Fund shall not be used for any other purpose. As soon as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly reasonably practicable after the Effective TimeTime but in no event later than five business days thereafter, Parent and the Surviving Corporation shall cause the Exchange Agent shall to mail to each holder of record of a certificate or certificates that which represented shares of Company Common Stock immediately prior to the Effective Time represented outstanding Shares and each holder of Company Restricted Stock as to which the applicable forfeiture restrictions lapse as of the Effective Time (the "CERTIFICATESCertificates") (other than any holder that previously submitted a properly completed and whose shares were converted into signed Form of Election accompanied by the right Certificates as to receive shares of Parent Common Stock pursuant to Section 1.8: (iwhich the Election was made) a letter of appropriate transmittal materials and instructions (which shall specify that delivery shall be effected effected, and risk of loss and title to the such Certificates shall pass pass, only upon proper delivery of the such Certificates to the Exchange Agent and Agent). The Certificate or Certificates so delivered shall be in such form and have such other customary provisions duly endorsed as Parent and the Company Exchange Agent may reasonably specify) and (ii) instructions for use in effecting the surrender require. The Exchange Agent shall not accept guarantee of the delivery of Certificates in exchange for certificates representing shares lieu of Parent Common Stock. Upon surrender physical delivery of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceledCertificates. In the event of a transfer of ownership of Shares shares of Company Common Stock represented by Certificates that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock Merger Consideration may be issued to a transferee if the Certificate Certificates representing such Shares is presented shares are delivered to the Exchange Agent Agent, accompanied by all documents required to evidence and effect such transfer and by evidence reasonably satisfactory to the Exchange Agent that any applicable stock transfer taxes have been paid. If any Certificate shall have been lost, stolen, mislaid or destroyed, upon receipt of (i) an affidavit of that fact from the holder claiming such Certificate to be lost, mislaid, stolen or destroyed, (ii) such bond, security or indemnity as Parent and the Exchange Agent may reasonably require and (iii) any other documents necessary to evidence and effect the bona fide exchange thereof, the Exchange Agent shall issue to such holder the consideration into which the shares represented by such lost, stolen, mislaid or destroyed Certificate shall have been converted. The Exchange Agent may establish such other reasonable and customary rules and procedures in connection with its duties as it may deem appropriate. For purposes of this Agreement, "business day" means any day that is not a Saturday or Sunday or other day on which banks are required or authorized by law to be closed in New York, New York.
(b) After the Effective Time, each holder of shares of Company Common Stock (other than shares to be canceled pursuant to Section 2.3 or as to which statutory dissenters' rights have been perfected as provided in Section 2.4) issued and outstanding at the Effective Time shall surrender the Certificate or Certificates representing such shares to the Exchange Agent (unless such Certificate or Certificates were previously delivered with a Form of Election) and shall promptly upon surrender thereof receive in exchange therefor the Merger Consideration (without interest), together with all undelivered dividends or distributions in respect of such shares (without interest) pursuant to Section 2.7(d). Parent shall not be obligated to deliver the Merger Consideration to which any former holder of Company Common Stock is entitled as a result of the Merger until such holder surrenders such holder's Certificate or Certificates for exchange as provided in this Section 2.7.
(c) Each of Parent, the Surviving Corporation and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts, if any, as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or foreign Tax law. To the extent that any amounts are so withheld by Parent, the Surviving Corporation or the Exchange Agent, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Exchange Agent, as the case may be.
(d) At the Effective Time, the stock transfer books of the Company shall be closed as to holders of Company Common Stock immediately prior to the Effective Time and no transfer of Company Common Stock by any such holder shall thereafter be made or recognized. Until surrendered as contemplated by this for exchange in accordance with the provisions of Section 1.102.7(a), each Certificate theretofore representing shares of Company Common Stock (other than shares to be canceled pursuant to Section 2.3 or as to which statutory dissenters' rights have been perfected as provided in Section 2.4) shall be deemed at any time from and after the Effective Time to represent for all purposes only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash Merger Consideration in lieu of exchange therefor, subject, however, to the Surviving Corporation's obligation to pay any fractional shares of Parent Common Stock as contemplated by this Section 1.10.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of make any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date prior to the Effective Time which have been declared or made by the Company in respect of such shares of Company Common Stock in accordance with the terms of this Agreement and which remain unpaid at the Effective Time. Whenever a dividend or other distribution is declared by Parent on the Parent Common Stock, the record date for which is at or after the Effective Time theretofore paid with respect to such number of whole Time, the declaration shall include dividends or other distributions on all shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date issuable pursuant to this Agreement, but after the Effective Time but prior no dividend or other distribution payable to surrender and a payment date subsequent to surrender payable with respect to such whole shares the holders of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares record of Parent Common Stock and cash in lieu as of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior time subsequent to the Effective TimeTime shall be delivered to the holder of any Certificate until such holder surrenders such Certificate for exchange as provided in Section 2.7(a). If, after the Effective Time, Certificates are presented to the Surviving Company Corporation for any reasonreason other than to perfect statutory dissenters' rights, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share Section 2.7. Shares of Parent Common Stock held in the Exchange Fund, until their issuance in the Merger upon surrender of Certificates or until such shares are delivered to a public official or Parent as contemplated by Section 2.7(f), shall be deemed issued and outstanding shares of Parent Common Stock. In connection with any meeting of stockholders of Parent, the Exchange Agent shall be directed to cause such shares to be present and counted for purposes of determining the presence of a quorum, and the Exchange Agent shall be directed to cause such shares to be voted for, voted against, abstained and not voted in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share same proportion as the shares of Parent Common Stock shall upon surrender outstanding and not held in the Exchange Fund. From and after such time as any shares of his or her Certificate or Certificates be entitled Parent Common Stock held in the Exchange Fund are returned to receive an amount of cash (without interest) determined by multiplying the Average Stock Price Company as contemplated by the fractional share interest last sentence of Section 2.7(f), such shares shall be deemed to which such holder would otherwise be entitled. The parties acknowledge that payment held in treasury and shall not be considered issued and outstanding shares of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional sharesParent Common Stock.
(ge) Any portion of the Exchange Fund and any cash in lieu of fractional shares of Parent Common Stock made available to the Exchange Agent that remains remain undistributed to the former stockholders of the Company upon on the one year first anniversary of the Effective Time shall be delivered to Parent Parent, upon demand, and any stockholders of the Company who have not theretofore complied with received the Merger Consideration and cash and other dividends or distributions to which they are entitled under this Article 1 II shall thereafter look only to Parent Parent, as a general creditor thereof, for payment of their claim for Parent Common Stock and the Merger Consideration, any cash in lieu of fractional shares, as the case may be, shares of Parent Common Stock and any applicable dividends or distributions with respect to Parent Common Stock.
(hf) Neither Parent nor the Company Surviving Corporation shall be liable to any holder of Shares for shares of Parent Company Common Stock for such shares (or dividends or distributions with respect thereto) or cash from the Exchange Fund in lieu of fractional shares of Parent Common Stock delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law. Any amounts remaining unclaimed by holders of any such shares at such date as is immediately prior to the time at which such amounts would otherwise escheat to or become property of any governmental entity shall, to the extent permitted by applicable law, become the property of Parent, free and clear of any claims or interest of any such holders or their successors, assigns or personal representatives previously entitled thereto.
Appears in 1 contract
Exchange of Certificates. (a) If the Series A Required Vote is received for the Series A Amendment or if any holder makes an Irrevocable Election, the Holding Restated Certificate of Incorporation shall establish the terms of Holding's preferred stock, including the Series A Preferred Stock (the "Holding Series A"). Such Holding Restated Certificate of Incorporation shall be substantially in the form of Exhibit 1.4 hereto and shall be filed with the Secretary of State of the State of Delaware prior to the Effective Time. The Holding Series A shall be convertible into Holding Class B Common Stock upon the terms and conditions, and shall have the rights, preferences and privileges, set forth in Exhibit 1.4.
(b) Prior to the Closing Date, PacifiCare shall select a reputable bank or trust company to act as exchange agent in the Merger (the "Exchange Agent"). Promptly after the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) Holding shall deposit with the Exchange Agent certificates representing the appropriate number of shares of Parent Holding Class A Common Stock, Holding Class B Common Stock and Holding Series A, if any, issuable pursuant to Section 1.8, 1.5 and (ii) Holding shall deposit cash sufficient to be paid make the payments called for in Section 1.5 and payments in lieu of fractional shares of Parent Common Stock (such in accordance with Section 1.7(e). The shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.Holding Class A 6
(bc) Promptly As soon as practicable after the Effective Time, the Exchange Agent shall will mail to each holder the holders of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Old Stock pursuant to Section 1.8: Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company Holding or PacifiCare may reasonably specify) specify and (ii) instructions for use in effecting the surrender of the Old Stock Certificates in exchange for certificates representing shares the consideration set forth in Section 1.5. If the Series A Required Vote is not received for the Series A Amendment, the Exchange Agent may (i) delay mailing the letter of Parent Common Stocktransmittal for holders of Company Series A Preferred Stock who have not made a valid Irrevocable Election until after expiration of the period during which Special Conversion Rights may be exercised or (ii) include the letter of transmittal with the Conversion Notice. Upon surrender of a an Old Stock Certificate for cancellation to the Exchange AgentAgent for exchange, together with such a duly executed letter of transmittal duly executedand such other documents as may be reasonably required by the Exchange Agent, the holder of such Old Stock Certificate shall be entitled to receive in exchange therefor (i) in the case of holders of Company Common Stock, (A) a certificate check in the amount calculated pursuant to this Article 1 (subject to required tax withholding) and (B) certificates representing that the number of whole shares of Parent Holding Class A Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent and Holding Class B Common Stock that such holder has the right to receive pursuant to the provisions of this Article 1; (ii) in the case of holders of Company Series A Preferred Stock if the Series A Required Vote is received for the Series A Amendment and as to holders who have made a valid Irrevocable Election with respect to the shares represented by such Old Stock Certificate.
(A) a check in the amount calculated pursuant to this Article 1 (subject to required tax withholding), and (B) a certificate representing the whole number of shares of Holding Series A that such holder has the right to receive pursuant to the provisions of this Article 1; (iii) in the case of holders of Company Series A Preferred Stock if the Series A Required Vote for the Series A Amendment is not received and a valid Irrevocable Election has not been made with respect to such Company Series A Preferred Stock, (A) if Special Conversion Rights are exercised, the consideration which such holder is entitled to receive upon exercise thereof (subject to required tax withholding) or (B) the As-If-Converted Company Merger Consideration (subject to required tax withholding); and (iv) in the case of holders of PacifiCare Class A Common Stock and PacifiCare Class B Common Stock, certificates representing the number of whole shares of Holding Series A and Holding Series B Common Stock that such holder has the right to receive pursuant to the provisions of Section 1.5. In each case, the Old Stock Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.101.7 or by Section 1.5(a)(iv), each Old Stock Certificate shall be deemed at any time deemed, from and after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as consideration contemplated by this Section 1.10.
1.5. (cd) No dividends or other distributions declared or made after the Effective Time with respect to Parent Holding Class A Common Stock, Holding Class B Common Stock or, if applicable, Holding Series A, with a record date after the Effective Time shall be paid to the holder of any unsurrendered Old Stock Certificate with respect to the shares of Parent Holding Class A Common Stock, Holding Class B Common Stock and Holding Series A represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f)holder, until the such holder of record of surrenders such Old Stock Certificate shall surrender in accordance with this Section 1.7 (at which time such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there holder shall be paid entitled to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any receive all such dividends and distributions and such cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnitypayment).
(e) All No certificates or scrip for fractional shares of Parent Holding Class A Common Stock, Holding Class B Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) or, if applicable, Holding Series A shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Mergerissued, but in lieu thereof thereof, each holder of Shares shares of Company Common Stock or Company Series A Preferred Stock who would otherwise be entitled to receive a certificate or scrip for a fraction of a share of Parent Holding Class A Common Stock, Holding Class B Common Stock or Holding Series A shall upon surrender receive from Holding a cash amount equal to the market value of his one share of Holding Class A Common Stock, Holding Class B Common Stock or her Certificate Holding Series A, as the case may be, (based on the closing sales price of one share of Holding Class A Common Stock, Holding Class B Common Stock or Certificates be entitled to receive an amount of cash Holding Series A as quoted on the Nasdaq National Market or the New York Stock Exchange (without interest) determined by multiplying "NYSE"), as the Average Stock Price by case may be, on the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.first 7
(gf) Any portion of the Exchange Fund that remains undistributed to the former stockholders of the Company upon or PacifiCare as of the one year anniversary date 365 days after the Effective Time date on which the Mergers become effective shall be delivered to Parent Holding upon demand, and any former stockholders of the Company or PacifiCare who have not theretofore complied surrendered their Old Stock Certificates in accordance with this Article 1 Section 1.7 shall thereafter look only to Parent Holding for payment of their claim claims for Parent cash, Holding Class A Common Stock and cash in lieu of fractional sharesStock, as the case may beHolding Class B Common Stock, Holding Series A and any applicable dividends or distributions with respect to Parent Common Stockthereto.
(hg) Neither Parent PacifiCare nor the Company shall be liable to any holder or former holder of Shares for shares of Parent Company Common Stock, PacifiCare Common Stock or Company Series A Preferred Stock with respect to any shares (or dividends or distributions with respect thereto) or cash amounts from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Talbert Medical Management Holdings Corp)
Exchange of Certificates. (a) Parent shall appoint a trust company or a commercial bank to act as paying agent hereunder (the “Paying Agent”). Prior to the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to deposit with the Company Paying Agent the aggregate Merger Consideration under Section 2.5(c) (the "EXCHANGE AGENT") for “Payment Fund”). The Paying Agent shall deliver the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable Merger Consideration contemplated to be paid pursuant to Section 1.8, and (ii2.5(c) cash to be paid in lieu out of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding SharesPayment Fund.
(b) Promptly Parent shall cause the Paying Agent, as soon as practicable after the Effective Time, the Exchange Agent shall to mail to each record holder of record of a certificate or certificates that which immediately prior to the Effective Time represented outstanding Shares shares of Company Common Stock converted in the Merger (the "CERTIFICATES") and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i“Certificates”) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon actual delivery of the Certificates to the Exchange Agent Paying Agent, and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) contain instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stockthe Merger Consideration). Upon surrender of a Certificate for cancellation to the Exchange AgentPaying Agent of one or more Certificates held by any record holder of a Certificate, together with such letter of transmittal transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may be entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive Merger Consideration pursuant to the provisions of this Article 12, and the any Certificate so surrendered shall forthwith be canceledcancelled. In No interest will be paid or accrued on the event of a transfer of ownership of Shares that is not registered in Merger Consideration payable to the transfer records holder of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.10Certificates.
(c) No dividends The Paying Agent shall invest the Payment Fund, as directed by Parent, in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) certificates of deposit, bank repurchase agreements or bankers acceptances, of commercial banks with assets exceeding $1,000,000,000, or (iv) a money market fund or time deposit rated AAm or better by Standard & Poor’s or Aa-3 or better by ▇▇▇▇▇’▇ Investors Services and any net earnings with respect thereto shall be paid to Parent as and when requested by Parent; provided that any such investment or any such payment of earnings shall not delay the receipt by holders of Certificates of their Merger Consideration or otherwise impair such holders’ respective rights hereunder.
(d) If any Merger Consideration is to be paid to a name other distributions declared than that in which the Certificate surrendered is registered, it shall be a condition of such payment that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any taxes required by reason of payment or made after shall establish to the Effective Time satisfaction of the Paying Agent that such tax has been paid or is not applicable. Parent or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as Parent or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Code, or under any provision of state, local or foreign tax law. To the extent that amounts are so withheld by Parent Common Stock with a record date after or the Effective Time Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Company Common Stock represented thereby, and no cash payment in lieu respect of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) deduction and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact withholding was made by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnityPaying Agent.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Physiometrix Inc)
Exchange of Certificates. (a) 2.4.1 Prior to the Effective TimeClosing Date, as required by subsections (b) and (c) below, Parent Ansan shall deliver to its transfer agentappoint Continental Stock Trust & Transfer, or a depository such other bank or trust institution of recognized standing company selected by Parent and Acquisition and reasonably satisfactory Ansan as Discovery may approve, to the Company act as exchange agent (the "EXCHANGE AGENTExchange Agent") for in the benefit of Merger.
2.4.2 Promptly after the holders of Shares Closing Date, but in no event later than three Business Days thereafter, the Exchange Agent shall make available for exchange in accordance with this Article 1: (i) certificates representing Section 2.4.2 the appropriate number of shares of Parent Common Ansan Stock issuable pursuant to Section 1.8, and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), 2.3 in exchange for outstanding Sharesshares of Discovery Stock.
(b) Promptly 2.4.3 As soon as practicable after the Effective TimeClosing Date, the Exchange Agent shall mail to each holder of record of a stock certificate or certificates that that, immediately prior to the Effective Time Closing Date, represented outstanding Shares shares of Discovery Stock (the a "CERTIFICATESCertificate") and whose shares were are being converted into the right to receive shares of Parent Ansan Common Stock or Ansan Preferred Stock pursuant to Section 1.8: 2.3, (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other customary provisions as Parent and the Company Ansan may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent evidencing Ansan Common Stock or Ansan Preferred Stock. Upon surrender of a Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Ansan, together with such letter of transmittal transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that (subject to Section 2.4) the number of whole shares of Parent Ansan Common Stock and, if applicable, a check representing the cash consideration or Ansan Preferred Stock to which such the holder may be of Discovery Stock is entitled on account of a fractional share of Parent Common Stock that such holder has the right to receive pursuant to Section 2.3 hereof and is represented by the provisions of this Article 1, and the Certificate so surrendered. The Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares Discovery Stock that is not registered in the transfer records of the CompanyDiscovery, a certificate representing the proper number of shares of Parent or its transfer agent, Ansan Common Stock or Ansan Preferred Stock may be issued delivered to a transferee if the Certificate representing such Shares Discovery Stock is presented to the Exchange Agent and accompanied by all documents required to evidence and effect such transfer and by to evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.102.4.3, each Certificate shall be deemed at any time after the Effective Time Closing Date to represent only the right to receive upon such surrender the certificate representing such whole number of shares of Parent Ansan Common Stock and cash in lieu of any fractional shares of Parent Common or Ansan Preferred Stock as contemplated provided by this Section 1.102.3 and the provisions of the DGCL.
(c) 2.4.4 No dividends or other distributions declared or made payable to Holders after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented therebyTime, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any or cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed paid to have been issued in full satisfaction the Holder of all rights pertaining to such Shares and there shall be no further registration of transfers on any unsurrendered Certificate until the stock transfer books Holder of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they Certificate shall be canceled and exchanged as provided in this Article 1surrender such Certificate.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) Prior to Within five (5) Business Days following the Effective Time, as required by subsections (b) and (c) below, Parent shall deliver to its transfer agent, will send or a depository or trust institution of recognized standing selected by Parent and Acquisition and reasonably satisfactory to the Company (the "EXCHANGE AGENT") for the benefit of the holders of Shares for exchange in accordance with this Article 1: (i) certificates representing the appropriate number of shares of Parent Common Stock issuable pursuant to Section 1.8, and (ii) cash cause to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "EXCHANGE FUND"), in exchange for outstanding Shares.
(b) Promptly after the Effective Time, the Exchange Agent shall mail sent to each holder of record record, as set forth in the Certified Closing Report, of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "CERTIFICATES") and whose shares were converted into the right to receive Company Stock Certificate previously representing shares of Parent Common Stock pursuant to Section 1.8Company Capital Stock: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent and shall be in such customary form and have containing such other customary provisions as Parent and the Company may reasonably specify) , and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the cash consideration to which such holder may Stockholders shall be entitled on account at the Effective Time pursuant to Section 1.5.
(b) Until so surrendered, each outstanding Company Stock Certificate that prior to the Effective Time represented shares of a fractional share of Parent Common Company Capital Stock that such holder has (other than the Cancelled Shares and Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Closing Merger Consideration (as it may be adjusted pursuant to the provisions of this Article 1, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered Section 1.8) as provided in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 1.101.
(c) In the event any Company Stock Certificate representing shares of Company Capital Stock converted in connection with the Merger pursuant to Section 1.5 shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the payment of any Closing Merger Consideration (as it may be adjusted pursuant to Section 1.8) with respect to the shares of Company Capital Stock previously represented by such Company Stock Certificate, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such amount, form and with such surety as Parent may reasonably direct) as indemnity against any claim that may be made against Parent, the Surviving Corporation or any affiliated party with respect to such Company Stock Certificate.
(d) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Company Capital Stock represented thereby, and no cash payment until such holder surrenders such Company Stock Certificate, as applicable, in lieu of fractional shares accordance with this Section 1.8 (at which time such holder shall be paid entitled to any receive all such holder pursuant to Section 1.10(fdividends and distributions), until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor without interest (i) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 1.10(f) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Common Stock.
(d) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof such shares of Parent Common Stock and cash in lieu of fractional shares, if any, as may be required pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon Parent, the surrender for exchange of Shares in accordance with the terms hereof (including Acquired Companies, and any cash paid other Person making a payment pursuant to Section 1.10(c) or 1.10(f)) this Agreement shall be deemed entitled to deduct and withhold from any consideration payable or otherwise deliverable to any Person pursuant to this Agreement such amounts as may be required under the Code or under any provision of state, local or foreign tax Law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1paid.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company Surviving Corporation shall be liable to any holder or former holder of Shares Company Capital Stock for any shares of Parent Common Stock (or dividends or distributions with respect thereto) ), or for any cash from the Exchange Fund amounts, delivered to a any public official pursuant to and as required by any applicable abandoned property, escheat escheat, or similar lawLaw.
Appears in 1 contract
Exchange of Certificates. (a) Prior Immediately prior to the Effective Time, as required by subsections (b) and (c) below, Parent Merger Partner or Sub shall deliver to its transfer agentdeposit with Citibank N.A., or a depository such other bank or trust institution of recognized standing selected company designated by Parent and Acquisition Merger Partner and reasonably satisfactory acceptable to the Company (the "EXCHANGE AGENTExchange Agent") ), for the benefit of the holders of Shares shares of Company Common Stock, Options, TLSARs and Stock Awards, for exchange in accordance with this Article 1: 1 through the Exchange Agent, in the aggregate, (i) cash in respect of the Cash Payment for each share of Company Common Stock payable pursuant to Section 1.2, (ii) certificates representing the appropriate number of shares of Parent Merger Partner Common Stock issuable pursuant to Section 1.81.2, and (iiiii) any additional cash to be paid in lieu of fractional shares shares, and (iv) except to the extent that Company and Merger Partner otherwise agree, cash payable pursuant to Section 5.16 in respect of Parent Common Options, TLSARs and Stock Awards (such shares of Parent Merger Partner Common Stock Stock, together with any dividends or distributions with respect thereto and such cash are deposited by Merger Partner in accordance with this Section 1.3, being hereinafter referred to as the "EXCHANGE FUNDExchange Fund"). The aggregate number of shares of Merger Partner Common Stock which shall be issuable shall be a number of such shares equal to the Exchange Ratio multiplied by the total number of outstanding shares of Company Common Stock as of the Effective Time (including shares of Restricted Stock), in exchange subject to adjustments for outstanding Sharesnonissuance of fractional shares as provided herein.
(b) Promptly As soon as practicable after the Effective TimeTime but in no event more than two business days following the Closing Date, Merger Partner and the Surviving Corporation shall cause the Exchange Agent shall to mail to each holder of record of a certificate Certificate or certificates that immediately prior to the Effective Time represented outstanding Shares Certificates (the "CERTIFICATES"and appropriate documentation for holders of Options, TLSARs and Stock Awards) and whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the Certificates shall pass pass, only upon delivery of the Certificates to the Exchange Agent accompanied by a properly executed letter of transmittal and shall be in such form and have such other customary provisions as Parent Merger Partner and the Company may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for cash and certificates representing shares of Parent Merger Partner Common Stock. Upon the surrender of a Certificate for cancellation to the Exchange AgentAgent of one or more Certificates for cancellation, together with such letter of transmittal transmittal, duly executed, the holder of such Certificate shall will be entitled to receive (i) an amount in exchange therefor a certificate cash determined by multiplying (x) the Cash Payment amount by (y) the aggregate number of such shares of Company Common Stock previously represented by the stock certificates surrendered, (ii) certificates representing that number of whole shares of Parent Merger Partner Common Stock and, if applicable, a check representing to be issued in respect of the cash consideration to which aggregate number of such holder may be entitled on account shares of a fractional share of Parent Company Common Stock that such holder has previously represented by the right to receive pursuant to the provisions of this Article 1, and the Certificate so stock certificates surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a transferee if the Certificate representing such Shares is presented to based upon the Exchange Agent accompanied by all documents required to evidence Ratio and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 1.10, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares (iii) an additional amount of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock share, as contemplated by this Section 1.101.2(c). Upon the delivery to the Exchange Agent of the appropriate documentation in respect of Options, TLSARs or Stock Awards, the holder of such Options, TLSARs or Stock Awards will be entitled to receive an amount in cash determined pursuant to Section 5.16.
(c) No dividends certificate or other distributions declared or made after the Effective Time with respect to Parent scrip representing fractional shares of Merger Partner Common Stock with a record date after the Effective Time shall be paid issued upon the surrender for exchange of Certificates, and such fractional share interests will not entitle the owner thereof to the vote or to any rights as a stockholder of Merger Partner. All fractional shares of Merger Partner Common Stock that a holder of any unsurrendered Certificate with respect to the shares of Parent Company Common Stock represented therebywould otherwise be entitled to receive as a result of the Merger shall be aggregated and if a fractional share results from such aggregation, and no cash payment such holder shall be entitled to receive, in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.10(f)thereof, until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued an amount in exchange therefor without interest cash determined by multiplying (i) the amount Share Price at the Effective Time of any cash payable in lieu one share of Merger Partner Common Stock by (ii) the fraction of a fractional share of Parent Merger Partner Common Stock to which such holder would otherwise have been entitled. Merger Partner shall timely make available to the Exchange Agent any cash necessary to make payments in lieu of fractional shares as aforesaid. No such cash in lieu of fractional shares of Merger Partner Common Stock shall be paid to any holder of Company Common Stock until Certificates are surrendered and exchanged in accordance with Section 1.3(a).
(d) If a certificate for Merger Partner Common Stock is entitled pursuant to Section 1.10(fbe sent to a person other than the person in whose name the Certificates for shares of Company Common Stock surrendered for exchange are registered, it shall be a condition of the exchange that the person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the delivery of such Certificate to a person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.
(e) The Cash Payments made and the amount shares of dividends or other distributions Merger Partner Common Stock issued upon the surrender of Certificates in accordance with a record date after the Effective Time theretofore terms hereof shall be deemed to have been paid with respect and issued in full satisfaction of all rights pertaining to such number of whole shares of Parent Common Stock and (ii) at the appropriate payment date the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Parent Company Common Stock.
(df) In the event that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor upon the making of an affidavit of that fact by the holder thereof person claiming such Certificate to be lost, stolen or destroyed and, if required by 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, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Cash Payments and shares of Parent Merger Partner Common Stock and cash in lieu of fractional shares, if anyand unpaid dividends and distributions on shares of Merger Partner Common Stock as provided in this Section 1.3, as may be required deliverable in respect thereof pursuant to this Agreement; provided, however, that Parent or the Exchange Agent may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All shares of Parent Common Stock issued upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid pursuant to Section 1.10(c) or 1.10(f)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article 1.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger, but in lieu thereof each holder of Shares otherwise entitled to a fraction of a share of Parent Common Stock shall upon surrender of his or her Certificate or Certificates be entitled to receive an amount of cash (without interest) determined by multiplying the Average Stock Price by the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(g) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the one year anniversary the Effective Time shall be delivered to Parent upon demand, and any stockholders of the Company who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claim for Parent Common Stock and cash in lieu of fractional shares, as the case may be, and any applicable dividends or distributions with respect to Parent Common Stock.
(h) Neither Parent nor the Company shall be liable to any holder of Shares for shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to and as required by any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Sources: Merger Agreement (Transamerica Corp)