Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent. (b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws. (c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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. (d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 3 contracts
Sources: Merger Agreement (Robertson M G), Merger Agreement (Regent University), Merger Agreement (Christian Broadcasting Network Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Parent shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as paying agent (the "Exchange Paying Agent") shall act as exchange agent in effecting the exchange payment of the Merger Consideration for ------------ upon surrender of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or ) that, prior to the ------------ Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforrepresented Shares. Upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such a properly completed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Paying Agent shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares formerly represented by such Certificate, in exchange therefor, and such Certificate shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Acquisition Sub or the Company, or any direct or indirect subsidiary thereof) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue on to the holders of Shares in respect of the Merger Consideration. If the Merger Consideration payable upon the surrender of the Certificates. If (or any Merger Consideration portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(cb) Promptly following Parent or Acquisition Sub shall deposit, or cause to be deposited on a timely basis, as and when the date which is 180 days Paying Agent requires after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited in trust with the Exchange Paying Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number to which holders of Shares represented by such Certificate, 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.
(d) After entitled at the Effective TimeTime pursuant to Section 2.7(a) hereof, there provided that no such deposit shall be no transfers on relieve Parent -------- of its obligation to pay the stock transfer books of the Surviving Corporation of any SharesMerger Consideration pursuant to Section 2.7(a). If, after the Effective Time, Certificates are presented Subject to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.Section 3.2(c) and
Appears in 3 contracts
Sources: Merger Agreement (Reltec Corp), Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent Surviving Corporation shall mail cause to be mailed to each record Person who was, at the Effective Time, a holder of Certificates record of Shares entitled to receive the Per Share Merger Consideration pursuant to Section 1.07(a) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each the Certificates pursuant to such letter of transmittal. Upon surrender to the Paying Agent of a Certificate, together with such letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to therefore the Per Share Merger Consideration multiplied by the number of Shares represented for each Share formerly evidenced by such Certificate, and such Certificate shall then be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall accrue or be paid or accrue on the Per Share Merger Consideration payable upon the surrender of any Certificate for the Certificatesbenefit of the holder of such Certificate. If any the payment equal to the Per Share Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Certificate surrendered in exchange therefor is registeredregistered on the stock transfer books of the Company, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Exchange Agent any have paid all transfer or and other taxes required by reason of the payment of such the Per Share Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish have established to the satisfaction of the Exchange Agent TAS that such tax has taxes either have been paid or is are not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor If any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered is unable to a public official pursuant to applicable abandoned propertysurrender such holder’s Certificates because such Certificates have been lost, escheat stolen, mutilated or destroyed, such holder may deliver in lieu thereof an affidavit and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, indemnity bond in form and any funds deposited substance and with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid surety reasonably satisfactory to the Surviving Corporation upon demandCorporation. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there Comparable procedures shall be no transfers on established to disburse the stock transfer books of Option Consideration and the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Purchase Right Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 2 contracts
Sources: Merger Agreement (Harber Lacy J), Merger Agreement (Timco Aviation Services Inc)
Exchange of Certificates. (a) From and As soon as reasonably practicable after the Effective Time, a bank or trust company to be designated by FKW Sub Time and reasonably acceptable to in any event not later than the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after fifth Business Day following the Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of a Certificate immediately prior to the Effective Time whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.1 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the Merger Consideration. Upon proper surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with such a letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by in respect of the number shares of Shares Company Common Stock formerly represented by such Certificate, Certificate and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateforthwith be cancelled. No interest shall will be paid or accrue accrued for the benefit of holders of the Certificates on the Merger Consideration payable upon the surrender of the Certificates.
(b) No dividends or other distributions with respect to Parent Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to Parent Common Shares that such holder would be entitled to receive upon surrender of such Certificate and no Merger Consideration shall be paid to any such holder until such holder shall surrender such Certificate in accordance with this Article III. After the surrender of a Certificate in accordance with this Article III, such holder thereof entitled to receive Parent Common Shares shall be entitled to receive any such dividends or other distributions, without any interest thereon, with a record date after the Effective Time and which theretofore had become payable with respect to whole Parent Common Shares issuable to such holder in respect of such Certificate.
(c) If any the payment of the Merger Consideration is to be paid made to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the Certificate surrenderedsurrendered in exchange therefor, it shall be a condition of payment 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 Person payment shall pay to the Exchange Agent in advance any applicable stock transfer or other Taxes or shall establish to the reasonable satisfaction of the Exchange Agent that such tax has Taxes have been paid or is are not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationpayable.
(d) After At and after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation Company of any Sharesthe shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates representing such shares are presented for transfer to the Surviving Corporation or the Exchange Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article IIII.
(e) Any portion of the property deposited with the Exchange Agent pursuant to Section 3.1 that remains unclaimed by the shareholders of the Company for six (6) months after the Effective Time shall be paid, subject at the request of Parent, to or as directed by Parent. Any shareholders of the Company who have not theretofore complied with this Article III shall thereafter look only to Parent for payment of the Merger Consideration and unpaid dividends and distributions on the Parent Common Shares deliverable in respect of each share of Company Common Stock held by such shareholder at the Effective Time as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding anything to the contrary contained herein, none of Parent, the Company, the Exchange Agent or any other person shall be liable to any former holder of shares of Company Common Stock for any amount properly delivered to a public official pursuant to applicable law abandoned property, escheat or similar Laws.
(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, the posting by such person of a bond in such amount as Parent or one of its Subsidiaries may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the case of Dissenting SharesExchange 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 2 contracts
Sources: Merger Agreement (Toronto Dominion Bank), Merger Agreement (Commerce Bancorp Inc /Nj/)
Exchange of Certificates. (a) From and Prior to the Effective Time, Parent shall appoint The Bank of New York or another bank or trust company that is reasonably satisfactory to the Company to act as paying agent (the “Paying Agent”) for the payment of the Merger Consideration. At the Effective Time, Parent shall deposit, or cause the Surviving Corporation to deposit, with the Paying Agent, for the benefit of the holders of Certificates, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to Section 2.01(c) (the “Exchange Fund”).
(b) As soon as reasonably practicable after the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of a bank or trust company Certificate whose shares of Company Common Stock were converted into the right to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of receive the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder a form of 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 proper delivery of the Certificates to the Exchange AgentPaying Agent and which shall be in customary form and contain customary provisions) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the Merger Consideration. Each holder of record of one or more Certificates shall, upon surrender to the Paying Agent of such Certificate or Certificates, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number for each share of Shares Company Common Stock formerly represented by such CertificateCertificate or Certificates, and the Certificates so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, payment of the Merger Consideration in accordance with this Section 2.04(b) may be made to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate shall be canceledproperly endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other Taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. Until so surrendered and exchangedas contemplated by this Section 2.04(b), each such Certificate shall be deemed at any time after the Effective Time to represent solely only the right to receive an amount equal to upon such surrender the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue accrued for the benefit of holders of the Certificates on the Merger Consideration payable upon the surrender in respect of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following The Merger Consideration paid upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited surrender of Certificates in accordance with the Exchange Agent that remain unclaimed by holders terms of Certificates this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Surviving Corporation upon demand. Thereafter, each holder shares of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares Company Common Stock formerly represented by such CertificateCertificates. At the close of business on the day on which the Effective Time occurs, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors share transfer books of the Surviving Corporation.
(d) After the Effective TimeCompany shall be closed, and there shall be no further registration of transfers on the stock share transfer books of the Surviving Corporation of any Sharesthe shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are any Certificate is presented to the Surviving Corporation or the Exchange Agentfor transfer, they it shall be canceled and exchanged for against delivery of the applicable Merger Consideration, Consideration as provided in this Article III.
(d) Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates for six months after the Effective Time shall be delivered to Parent, subject upon demand, and any holders of the Certificates who have not theretofore complied with this Article II shall thereafter look only to Parent for, and Parent shall remain liable for, payment of their claim for the Merger Consideration in accordance with this Article II.
(e) None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any person in respect of any cash or distributions from the Exchange Fund properly delivered to a public official pursuant to any applicable law abandoned property, escheat or similar Law. If any Certificate shall not have been surrendered prior to four years after the Effective Time (or immediately prior to such 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 Parent, free and clear of all claims or interest of any person previously entitled thereto.
(f) The Paying Agent shall invest the cash included in the case Exchange Fund as directed by Parent. Any interest and other income resulting from such investments will be payable to the Surviving Corporation or Parent, as Parent directs. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to fully satisfy all of Dissenting Sharesthe payment obligations to be made by the Paying 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 cash payment obligations.
(g) 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 Paying Agent shall deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable pursuant to this Article II.
(h) Parent, the Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as Parent, the Surviving Corporation or the Paying Agent are 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 and paid over to the appropriate Taxing Authority by Parent, the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Certificates in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (McKesson Corp), Merger Agreement (Per Se Technologies Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after Within five days following the Effective Time, the Exchange Agent (as defined below) shall mail to each record holder of Certificates record of Company Common Stock immediately prior to the Effective Time (other than Excluded Shares) (i) a letter of transmittal (the “Company Letter of Transmittal”) (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates Company certificates representing shares of Company Common Stock (the “Certificates”) shall pass, only upon proper delivery of the such Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions as Parent shall reasonably specify) and (ii) instructions for use in surrendering effecting the surrender of the Certificates and receiving in exchange for the Merger Consideration therefor. with respect to the shares of Company Common Stock formerly represented thereby.
(b) Upon surrender to the surrender Exchange Agent of each a Certificate, together with such letter the Company Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions thereto, and only upon such surrender, the holder of such Certificate shall be entitled to receive receive, in exchange therefor therefor, and Parent shall promptly cause to be delivered to such holder, a check or wire transfer for the amount of Merger Consideration to which such holder is entitled, after giving effect to any required tax withholdings. The Certificates surrendered pursuant to this Section 2.3(b) shall forthwith be cancelled. If any Certificate shall have been lost, stolen, mislaid or destroyed, then upon receipt of an amount equal affidavit of that fact from the holder claiming such Certificate to be lost, mislaid, stolen or destroyed and a lost certificate indemnity, the Exchange Agent shall issue to such holder the Merger Consideration multiplied by into which the number of Shares shares represented by such Certificatelost, and such stolen, mislaid or destroyed Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. have been converted.
(c) No interest shall will be paid or will accrue on the Merger Consideration amount payable upon the surrender of the Certificatesany Certificate. If any Merger Consideration payment is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration made to a Person other than the registered holder of the Certificate surrendered, it shall be a condition of such payment that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, as reasonably determined by the Exchange Agent or Parent, and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person shall other than the registered holder of the Certificate surrendered or establish to the reasonable satisfaction of the Parent or the Exchange Agent that such tax has been paid or is not applicablepayable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly One year following the date which is 180 days after the Effective Time, the Exchange Agent's duties Parent shall terminate, and any funds deposited with be entitled to cause the Exchange Agent that remain unclaimed by to deliver to it any funds (including any interest received with respect thereto) made available to the Exchange Agent which have not been disbursed to holders of Certificates certificates formerly representing shares of Company Common Stock outstanding immediately prior to the Effective Time, and thereafter such holders shall be paid entitled to look to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to Parent only as general creditors thereof with respect to cash payable upon due surrender of the Surviving Corporationtheir Certificates.
(d) After In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, Merger Consideration may be paid or issued to a Person other than the Person in whose name the Certificate so surrendered is registered, if such Certificate, accompanied by all documents required to evidence and effect such transfer, shall be properly endorsed with signature guarantees or otherwise be in proper form for transfer, and the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such tax has been paid or is not applicable.
(e) The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this ARTICLE II shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Certificates. At the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they Company shall be canceled closed, and exchanged for there shall be no further registrations of transfers of shares of Company Common Stock thereafter on the applicable Merger Consideration, as provided in this Article I, subject to applicable law in records of the case of Dissenting SharesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Venture Catalyst Inc), Merger Agreement (International Game Technology)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub Acquisition Corp. and reasonably acceptable to the Company (the "Exchange AgentPAYING AGENT") shall act as exchange paying agent in effecting the exchange of for the Merger Consideration for of certificates representing that, prior to the Effective Time, represented Public Shares entitled to payment pursuant to Section 1.6 (1.03. Upon the "Certificates"). At or surrender of each such certificate and the delivery by the Paying Agent of the Merger Consideration in exchange therefore, the certificates that, prior to the Effective Time, FKW Sub represented outstanding Public Shares shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Public Shares represented by such Certificatecertificate. No interest Upon the surrender and exchange of such outstanding certificate, the holder shall be paid or accrue on receive the Merger Consideration payable upon the surrender of the CertificatesConsideration, without any interest thereon. If any Merger Consideration cash is to be paid to a Person person other than the Person a person in whose name the Certificate such surrendered in exchange therefor certificate is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person person requesting such payment or exchange shall pay to the Exchange Paying Agent any transfer or other taxes required by reason of the payment of such Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrenderedsuch surrendered certificate, or such Person person shall establish to the satisfaction of the Exchange Paying Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Paying Agent nor any party hereto to any such exchange shall be liable to a holder of Public Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned propertyproperty laws.
(b) At or prior to the Effective Time, escheat and similar lawsAcquisition Corp. shall provide the Paying Agent with sufficient cash to pay the Merger Consideration to each holder of Public Shares entitled thereto.
(c) Promptly following the date which is 180 days six months after the Effective Time, the Exchange Paying Agent shall return to the Surviving Corporation all cash (together with all interest earned thereon) and other instruments in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate certificate that immediately prior to the Effective Time represented Public Shares may surrender such Certificate certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to therefore the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereoninterest, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving CorporationCorporation under Delaware law.
(d) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that immediately prior to the Effective Time represented (a) Public Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving the Merger Consideration therefore, and (b) Continuing Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving new certificates for Acquisition Corp. Shares.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Public Shares. If, after the Effective Time, Certificates certificates that immediately prior to the Effective Time represented Public Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article ISection 1.03 hereof, subject to applicable law in the case of Dissenting Shares.
Appears in 2 contracts
Sources: Merger Agreement (Royal Precision Inc), Merger Agreement (Royal Precision Inc)
Exchange of Certificates. (a) From Prior to the Effective Time, Parent shall select and appoint a commercial bank or trust company who shall be reasonably satisfactory to the Company to act as the paying agent (the “Paying Agent”) for the payment of the Merger Consideration upon surrender of Certificates representing Company Common Stock. At the Closing, Parent shall cause to be deposited with the Paying Agent the aggregate Merger Consideration under Section 3.01(c) (such cash being hereinafter referred to as the “Exchange Fund”). The Paying Agent shall deliver the Merger Consideration contemplated to be paid pursuant to Section 3.01(c) out of the Exchange Fund.
(b) As soon as reasonably practicable after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to Parent shall cause the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Paying Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of record of a Certificate or 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 proper delivery of the Certificates to the Exchange AgentPaying Agent and shall be in a form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by (or appropriate portion thereof) into which the number shares of Shares Company Common Stock theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 3.01(c), and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely In the right to receive an amount equal to event of a transfer of ownership of Company Common Stock which is not registered in the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender transfer records of the Certificates. If any Merger Consideration is to Company, payment may be paid made to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, if such Certificate shall be accompanied by all documents required to evidence properly endorsed or otherwise be in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange payment shall (A) pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the such Certificate surrendered, or such Person shall (B) establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax Tax has been paid or is otherwise not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 3.03, neither the Exchange Agent nor any party hereto each Certificate (other than Certificates representing Dissenters’ Shares) shall be liable deemed at any time after the Effective Time to a holder represent only the right to receive upon such surrender the Merger Consideration (or appropriate portion thereof), without interest, into which the shares of Shares for Company Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 3.01(c). No interest shall be paid or shall accrue on any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following payable upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesCertificate.
Appears in 2 contracts
Sources: Merger Agreement (Carters Inc), Merger Agreement (Oshkosh B Gosh Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Parent shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as paying agent (the "Exchange Paying Agent") shall act as exchange agent in effecting the exchange for the Purchase Price of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or ) that, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforrepresented Shares. Upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such a properly completed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Paying Agent shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration Purchase Price multiplied by the number of Shares formerly represented by each such Certificate, in exchange therefor, and each such Certificate shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Purchaser or the Company, or any direct or indirect subsidiary thereof, or in the treasury of the Company) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificatePurchase Price. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesPurchase Price. If the Purchase Price (or any Merger Consideration portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration the Purchase Price to a Person person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable. Notwithstanding .
(b) Prior to the foregoingEffective Time, neither Parent or Purchaser shall deposit, or cause to be deposited, in trust with the Exchange Paying Agent nor any party hereto the Purchase Price to which holders of Shares shall be liable to a holder of Shares for any Merger Consideration delivered to a public official entitled at the Effective Time pursuant to applicable abandoned propertySection 2.07 hereof; provided, escheat and similar lawshowever, that no such deposit shall relieve Parent or Purchaser of its obligation to pay the Purchase Price pursuant to Section 2.07.
(c) The Purchase Price shall be invested by the Paying Agent as directed by Parent, provided that such investments shall be limited to direct obligations of the United States of America, 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, commercial paper rated of the highest quality by ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a commercial bank having at least $1,000,000,000 in assets; provided further that no loss on investment made pursuant to this Section 3.02(c) shall relieve Parent or Purchaser of its obligation to pay the Purchase Price pursuant to Section 2.07.
(d) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties Paying Agent shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders mail to each record holder of Certificates shall be paid that immediately prior to the Surviving Corporation upon demand. Thereafter, each holder Effective Time represented Shares a form of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat instructions for use in surrendering such Certificates and similar laws) receive receiving the Purchase Price in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationtherefor.
(de) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Purchase Price as provided in this Article IIII, subject to applicable law in the case of Dissenting Shares.
(f) Promptly following the date which is six months after the Effective Time, the Paying Agent shall deliver to Parent all cash and documents in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate. Thereafter, each holder of a Certificate formerly 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 Purchase Price, without any interest thereon.
Appears in 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
Exchange of Certificates. Each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock (aother than Cancelled Shares and Dissenting Shares, if any) From shall, upon surrender to the Exchange Agent of such certificate(s) and after acceptance thereof by the Exchange Agent (together with the Letter of Transmittal described in Section 2.2(b), duly executed, and such other documents as may reasonably be required by the Exchange Agent), be entitled to receive the amount of the Merger Consideration into which the number of shares of Company Common Stock previously represented by such certificate(s) so surrendered shall have been converted pursuant to this Agreement. After the Effective Time, a bank or trust company to there shall be designated by FKW Sub and reasonably acceptable to no further transfer on the records of the Company (the "Exchange Agent") shall act as exchange or its transfer agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment shares of Company Common Stock which have been converted pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely this Agreement into the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by Consideration, and if such Certificate. No interest certificates are presented for transfer, they shall be paid or accrue on cancelled against delivery of the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration is to be paid delivered to a any Person other than the Person in whose name the Certificate certificate(s) representing shares of Company Common Stock surrendered in for exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange that the certificate(s) so surrendered shall be properly endorsed with the signature guaranteed or otherwise in proper form for transfer, and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such the Merger Consideration to a Person other than the registered holder of the Certificate surrenderedthereof, or such Person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.2(a), neither the Exchange Agent nor any party hereto shall be liable each certificate which, prior to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminaterepresented outstanding shares of Company Common Stock (other than Cancelled Shares and Dissenting Shares, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates if any) shall be paid deemed at any time after the Effective Time to represent only the Surviving Corporation right to receive upon demand. Thereafter, each holder of a Certificate may such surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without in accordance with Section 1.8. No interest will be paid or will accrue on any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable cash payable as Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 2 contracts
Sources: Merger Agreement (RWD Technologies Inc), Merger Agreement (RWD Technologies Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Parent shall select and appoint a commercial bank or trust company to who shall be designated by FKW Sub and reasonably acceptable satisfactory to the Company to act as the paying agent (the "Exchange “Paying Agent"”) shall act as exchange agent in effecting for the exchange payment of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "upon surrender of Certificates"). At or prior to the Effective Time, FKW Sub Parent shall deposit with the Exchange Paying Agent for the benefit of the holders of shares of Company Common Stock immediately available funds in the amount necessary of the aggregate Merger Consideration under Section 3.01(c) (such cash being hereinafter referred to enable as the “Exchange Fund”). The Paying Agent to exchange shall deliver the Merger Consideration for Certificates received by contemplated to be paid pursuant to Section 3.01(c) out of the Exchange AgentFund.
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Paying Agent shall to mail to each record holder of record of a Certificate or Certificates whose shares were converted into the right to receive the Merger Consideration pursuant to Section 3.01(c) (i) a letter of transmittal (which shall be in customary form and specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentPaying Agent (or affidavit of loss in lieu thereof in accordance with Section 3.08) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for Merger Consideration. Upon surrender of a Certificate (or affidavit of loss in lieu thereof in accordance with Section 3.08) for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by into which the number shares of Shares Company Common Stock theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 3.01(c), and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely In the right to receive an amount equal to event of a transfer of ownership of Company Common Stock which is not registered in the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender transfer records of the Certificates. If any Merger Consideration is to Company, payment may be paid made to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, if such Certificate shall be accompanied by all documents required to evidence properly endorsed or otherwise be in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange payment shall (A) pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the such Certificate surrendered, or such Person shall (B) establish to the reasonable satisfaction of the Exchange Agent Surviving Corporation that such tax Tax has been paid or is otherwise not applicable. Notwithstanding the foregoingExcept as otherwise provided with respect to unpaid dividends and other distributions in Section 3.04, neither the Exchange Agent nor any party hereto until surrendered as contemplated by this Section 3.03, each Certificate (other than Certificates representing Appraisal Shares) shall be liable to a holder of Shares for deemed at any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days time after the Effective Time, Time to represent only the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid right to the Surviving Corporation receive upon demand. Thereafter, each holder of a Certificate may such surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Considerationinterest, as provided in this Article I, subject to applicable law in Agreement. No interest shall be paid or shall accrue on any Merger Consideration payable upon the case surrender of Dissenting Sharesany Certificate.
Appears in 2 contracts
Sources: Merger Agreement (Ntelos Holdings Corp.), Merger Agreement (Shenandoah Telecommunications Co/Va/)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to Parent with the concurrence of the Company shall act as exchange agent (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration Price for -------------- certificates representing which prior to the Effective Time represented Shares entitled and which as of the Effective Time represent the right to payment pursuant to Section 1.6 receive the Merger Price (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall ------------ mail to each record holder of Certificates 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration thereforPrice therefor in a form approved by Parent and the Company. 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 canceled. Until so surrendered and exchanged, each Certificate shall represent solely the right to receive the Merger Price for the Shares represented thereby, without any interest thereon. Upon the surrender and exchange of such an outstanding Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate thereof shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration Price multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No without any interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesthereon. If any Merger Consideration cash is to be paid to a Person name other than the Person that in whose name which the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person 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 Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrendered, or such Person 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 of Shares Certificates for any part of the Merger Consideration delivered Price payments made to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cb) Promptly following the date which is 180 days sixth month after the Effective Time, the Exchange Agent shall return to the Surviving Corporation all cash relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by Price for such CertificateShares, 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.
(d) After Corporation under applicable law. At and after the Effective Time, 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 to perfect their right to receive payment for their Shares pursuant to Section 262 of the DGCL and Section ------- 2.4 below, and there shall be no transfers on the stock transfer books of the --- Company or the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented Shares that were outstanding immediately prior to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesMerger.
Appears in 2 contracts
Sources: Merger Agreement (Kaplan Inc), Merger Agreement (Kaplan Inc)
Exchange of Certificates. (a) From and At or as soon as practicable after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Bank of New Yorkor its designee (the "Exchange Disbursement Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior will send to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
holders of Company Stock Certificates: (bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agentii) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each CertificateCompany Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Disbursement Agent for exchange, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other documents as may be reasonably required by Parent or the instructions theretoDisbursement Agent, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor an amount equal to a portion of the Merger Consideration multiplied by that such holder has the number right to receive pursuant to the provisions of Shares represented by such CertificateSection 1.5 above, and such the Company Stock Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall will be paid or accrue accrued on the Merger Consideration cash payable upon the surrender of the Company Stock Certificates. If any Merger Consideration payment is to be paid made to a Person person other than the Person person in whose name the Company Stock Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Person Company Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the Company Stock Certificate surrendered, surrendered or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender the portion of the Merger Consideration 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 delivery of the Merger Consideration applicable to such 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 sum as Parent 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. As of the Effective Time, Parent shall deposit with the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) the total amount of the Merger Consideration (such amount, being hereinafter referred to as the "Disbursement Fund"). The Disbursement Fund shall be distributed pursuant to an agreement by and among Parent and the Disbursement Agent in a form reasonably satisfactory to the Company (the "Disbursement Agent Agreement") which shall be designed with the intent of effecting the provisions of this Agreement.
(b) Parent and the Surviving Corporation (or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) on their behalf) 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 this Agreement such amounts as Parent or the Surviving Corporation reasonably determine are required to be deducted or withheld therefrom under the Internal Revenue Code (the "Code") or under any provision of state, local or foreign tax law (or, in the alternative, Parent or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), at Parent's option, may request tax information and other documentation establishing that no withholding is necessary). 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.
(c) Any portion of the Disbursement Fund held by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) pursuant to this Section 1.8 which remains undistributed to the Shareholders of the Company at the earlier of (i) immediately prior to such time on which any of such portion would otherwise escheat or become the property of any governmental unit or agency, and (ii) thirteen (13) months after the Effective Time, shall to the extent permitted by applicable law be delivered to Surviving Corporation and become the property thereof, and any Shareholders of the Company who have not theretofore complied with this Section 1.8 shall thereafter look only to Surviving Corporation, and only as general creditors thereof, for payment of their claim for the Merger Consideration to which such Shareholders may be entitled. Notwithstanding the foregoing, neither Parent nor the Exchange Agent nor any party hereto Surviving Corporation shall be liable to a any holder or former holder of Shares capital stock of the Company for any Merger Consideration cash amounts, delivered to a any public official pursuant to any applicable abandoned property, escheat and or similar lawslaw.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 2 contracts
Sources: Merger Agreement (Interwest Home Medical Inc), Merger Agreement (Interwest Home Medical Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company shall be designated by Parent (the "Exchange Paying Agent") shall to act as exchange agent in effecting connection with the exchange of Merger to receive and pay the Merger Consideration for certificates representing to which holders of Shares shall become entitled to payment pursuant to Section 1.6 (the "Certificates"2.7(a). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent Surviving Corporation shall mail cause to be mailed to each record holder holder, as of Certificates the Effective Time, of a certificate or certificates (the "Certificates") that, prior to the Effective Time, represented Shares, 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering effecting the surrender of the Certificates and receiving in exchange for the appropriate Merger Consideration therefor. Upon Subject to Section 3.2(c), upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, the Paying Agent shall deliver to the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares formerly represented by such CertificateCertificate in exchange therefor, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Acquisition or the Company, or any direct or indirect subsidiary thereof) shall represent solely the right to receive an amount equal to the appropriate Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration (or any portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax has been paid or is not applicable. Notwithstanding .
(b) When and as needed, Parent or Acquisition shall deposit, or cause to be deposited, in trust with the foregoing, neither Paying Agent the Exchange Agent nor any party hereto appropriate Merger Consideration to which holders of Shares shall be liable entitled at the Effective Time pursuant to a holder Section 2.7(a) of Shares this Agreement. The funds held by the Paying Agent pursuant to this Section 3.2 shall not be used for any purpose other than the payment of the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsthis Agreement.
(c) Promptly following the date which is 180 days six months after the Effective Time, Parent will cause the Exchange Paying Agent to deliver to the Surviving Corporation all cash and documents in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate formerly representing a Share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the appropriate Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they such Certificates shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article IIII, subject to applicable law in the case of Dissenting Shares.
Appears in 2 contracts
Sources: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Mycogen Corp)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Purchaser ------------------------ shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company act as agent (the "Exchange Paying Agent") shall act as exchange agent in effecting for the holders of Shares and Preferred Shares to receive the funds necessary to effect the exchange for cash of certificates which, immediately prior to the Merger Consideration for certificates representing Effective Time, represented Shares or Preferred Shares entitled to payment pursuant to Section 1.6 (the "Certificates"2.5(a) or 2.5(b). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly As soon as practicable after the Effective Time, the Exchange Paying Agent shall mail a transmittal form (the "Letter of Transmittal") to each record holder of Certificates a letter record of transmittal (which shall specify that delivery shall be effected, and risk certificates theretofore representing such Shares or Preferred Shares advising such holder of loss and title the procedure for surrendering to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with Paying Agent such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatescertificates. If any a check for the Merger Consideration is to be paid to issued in the name of a Person person other than the Person person in whose name the Certificate certificates for Shares or Preferred Shares surrendered in for exchange therefor is registeredare registered on the books of the Company, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such of the exchange that the Person person requesting such exchange shall pay to the Exchange Paying Agent any all transfer or other taxes required by reason of the payment issuance of such Merger Consideration to check in the name of a Person person other than the registered holder owner of the Certificate certificates surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax has taxes have been paid or is are not applicable. Notwithstanding the foregoing, neither the Exchange Paying Agent nor any party hereto shall be liable to a holder of certificates theretofore representing Shares or Preferred Shares for any Merger Consideration delivered amount paid to a public official pursuant to any applicable abandoned property, escheat and or similar laws.
. Upon the surrender and exchange of a certificate theretofore representing Shares or Preferred Shares, the holder shall be paid by check, without interest thereon, the Merger Consideration to which he or she is entitled hereunder, less only such amount required to be withheld under applicable backup withholding federal income tax regulations, and such certificate shall forthwith be cancelled. The Company shall take all steps necessary and appropriate to promptly effect the conversion of the Preferred Shares upon surrender by the holders thereof to the Company for conversion. Until so surrendered and exchanged, each such certificate shall represent solely the right to receive the Merger Consideration into which the Shares or Preferred Shares it theretofore represented shall have been converted pursuant to Sections 2.5(a) and (c) Promptly following b), without interest, and the date Surviving Corporation shall not be required to pay the holder thereof the Merger Consideration to which is 180 days such holder otherwise would be entitled; provided that -------- customary and appropriate certifications and indemnities allowing for payment against lost or destroyed certificates shall be permitted. If any certificates representing any Shares or Preferred Shares shall not have been surrendered prior to five years after the Effective TimeTime (or immediately prior to such earlier date on which any payment in respect thereof would otherwise escheat to or become the property of any governmental unit or agency), the Exchange Agent's duties shall terminatepayment in respect of such certificates shall, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafterextent permitted by applicable law, each holder of a Certificate may surrender such Certificate to become the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors property of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books free and clear of the Surviving Corporation all claims or interest of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Sharesperson previously entitled thereto .
Appears in 2 contracts
Sources: Merger Agreement (BHP Sub Inc), Merger Agreement (Magma Copper Co)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective TimeClosing, FKW Sub Parent shall deposit enter into an agreement with Computershare Trust Company, N.A. (or such other bank or trust company in the United States as may be designated by Parent, the “Exchange Agent”), which shall provide that Parent shall, upon the Closing, deliver to the Exchange Agent (i) the amount shares of Parent Common Stock and cash necessary to enable for the Exchange Agent to exchange payment of the Merger Consideration pursuant to Section 1.1 and the cash consideration necessary for Certificates received by the payment to holders of vested Company Options pursuant to Section 4.14(a)(i)(A). Parent shall pay the fees and expenses of the Exchange Agent.
(b) Promptly As soon as reasonably practicable after the Effective TimeClosing, Parent shall cause the Exchange Agent to deliver or mail to each holder of record of a Certificate (i) a letter of transmittal substantially in the form attached hereto as Exhibit F-1 with such changes as the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal reasonably request (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in surrendering Certificates in exchange for consideration specified and receiving the Merger Consideration thereforallocated in Section 1.4. Upon the surrender of each Certificatea Certificate for cancellation to the Exchange Agent, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoExchange Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to therefore the Merger Consideration multiplied by for which the number of Shares represented shares formerly held by such Certificateholder are to be exchanged in accordance with Section 1.4 (less any shares of Parent Common Stock deposited in the Stock Escrow Fund and/or cash deposited into the Cash Escrow Fund), and such Certificate the certificates so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number If a transfer of Shares ownership of shares of Company Capital Stock represented by such Certificate. No interest shall a Certificate has not been registered in the Company’s transfer records, payment may be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid made to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, registered if such Certificate shall is properly endorsed or otherwise be accompanied by all documents required to evidence in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange issuance shall pay to the Exchange Agent any transfer or other taxes Tax (as defined in Section 2.9(a)) required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not applicable. Notwithstanding Other than interest earned that becomes part of the foregoingCash Escrow Fund, neither the Exchange Agent nor any party hereto no interest shall be liable paid or will accrue on the cash payable to a holder holders of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsCertificates in accordance with the provisions of this ARTICLE 1.
(c) Promptly following the date which is 180 days As soon as reasonably practicable after the Effective TimeClosing, the Exchange Agent's duties Parent shall terminate, and any funds deposited with cause the Exchange Agent that remain unclaimed by holders to deliver or mail to each holder of Certificates record of a Company Option of which a portion is vested as of immediately prior to the Effective Time (i) a letter of transmittal substantially in the form attached hereto as Exhibit F-2 with such changes as the Exchange Agent shall reasonably request (an “Option Letter of Transmittal”) and (ii) instructions for use in submitting the Option Letter of Transmittal in exchange for the cash consideration specified in Section 4.14(a)(i)(A). No interest shall be paid or will accrue on the cash payable to the Surviving Corporation upon demand. Thereafter, each holder holders of a Certificate may surrender such Certificate to the Surviving Corporation along Company Options in accordance with the applicable letter provisions of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationthis ARTICLE 1.
(d) After All shares of Parent Common Stock issued and all cash paid upon the Effective Timesurrender of Certificates in accordance with the terms of this ARTICLE 1 (including shares of Parent Common Stock deposited into the Stock Escrow Fund and cash deposited into the Cash Escrow Fund) shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Capital Stock represented by such certificates, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation Company of any Sharesthe shares of Company Capital Stock which were outstanding immediately prior to the Closing. If, after the Effective Time, Certificates are presented to the Surviving Corporation Company or the Exchange AgentAgent for any reason, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article IARTICLE 1, subject except as otherwise provided by law.
(e) None of Parent, the Surviving Company or the Exchange Agent shall be liable to any Person in respect of any cash delivered to a public official in accordance with any applicable law abandoned property, escheat or similar law. If any Certificate shall not have been surrendered, or any Option Letter of Transmittal shall not have been delivered, immediately prior to the date on which any amounts payable in accordance with this ARTICLE 1 would otherwise escheat to or become the case property of Dissenting Sharesany Governmental Entity (as defined in Section 2.3), any such amounts shall, to the extent permitted by applicable law, become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the execution and delivery to the Exchange Agent by the holder of record of such Certificate of such additional documentation that the Exchange Agent may reasonably request, the payment to the Exchange Agent by such holder of any indemnity/surety bond in such amount as required by the Exchange Agent and the payment to the Exchange Agent by such holder of any handling or other fee required by the Exchange Agent, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration with respect thereto in accordance with Section 1.5.
(g) The Surviving Company or the Exchange Agent shall be entitled to deduct and withhold from amounts otherwise payable in accordance with this Agreement to any former holder of shares of Company Capital Stock or Company Options such amounts as the Surviving Company or the Exchange Agent reasonably believes is required to be deducted and withheld 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 and paid over to the appropriate taxing authority by the Surviving Company or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Capital Stock or Company Options in respect of which such deduction and withholding was made by the Surviving Company or the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Exchange of Certificates. (a) From and after On or prior to the Effective TimeClosing Date, Parent shall select a reputable bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the "Exchange “Paying Agent") shall act as exchange agent in effecting the exchange ”). As of the Merger Consideration Effective Time, Parent shall have deposited with the Paying Agent, in trust for certificates representing the benefit of the Persons who were registered holders of Company Ordinary Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or immediately prior to the Effective Time, FKW Sub shall deposit cash in an amount equal to the aggregate consideration payable pursuant to Section 1.5(a)(iii). The cash amount so deposited with the Exchange Paying Agent is referred to as the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent“Payment Fund.”
(b) Promptly after As soon as practicable following the Effective Time, the Exchange Paying Agent shall will mail to each record holder the registered holders of Certificates Company Ordinary Shares: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and that the Company may reasonably approve prior to the Effective Time (which shall specify including a provision confirming that delivery of Company Share Certificates shall be effected, and risk of loss and title to the Company Share Certificates shall pass, only upon proper delivery of the such Company Share Certificates to the Exchange Paying Agent); and (ii) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each CertificateCompany Share Certificates in exchange for the Merger Consideration. Upon surrender of a Company Share Certificate to the Paying Agent for exchange, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other customary documents as may be reasonably required by the instructions thereto, Paying Agent or Parent: (A) the holder of such Company Share Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Company Ordinary Shares represented by such the Company Share Certificate, ; and such (B) the Company Share Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration cash is to be paid to a Person other than the Person in whose name the Company Share Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange payment that the Company Share Certificate so surrendered shall be properly endorsed (with such signature guarantees as may be required by the letter of transmittal) or otherwise in proper form for transfer, and that the Person requesting such exchange shall payment shall: (1) pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the such payment of such Merger Consideration to a Person other than the registered holder of the Company Share Certificate surrendered, ; or such Person shall (2) establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not applicablerequired to be paid. Notwithstanding The exchange procedures shall comply with such procedures as may be required by the foregoingIsraeli Withholding Tax Pre-Ruling (as defined in Section 5.3(b)), neither if obtained, and shall permit Parent (after consultation with the Exchange Agent nor Company) to require holders of Company Ordinary Shares to provide any party hereto information as is reasonably needed to comply with the Israeli Withholding Tax Pre-Ruling. Until surrendered as contemplated by this Section 1.7(b), each Company Share Certificate shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned propertydeemed, escheat from and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, to represent only the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid right to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive cash in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Company Ordinary Shares represented by such Company Share Certificate, without interest thereon. If any Company Share Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the delivery of any Merger Consideration, require the owner of such lost, stolen or destroyed Company Share 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 Paying Agent, Parent, the Surviving Corporation or any affiliated party with respect to such Company Share Certificate.
(c) Any portion of the Payment Fund that remains undistributed to holders of Company Share Certificates as of the date 180 days after the Closing Date shall be delivered by the Paying Agent to Parent upon demand, and any holders of Company Share Certificates who have not theretofore surrendered their Company Share Certificates in accordance with this Section 1.7 shall thereafter look only to Parent for satisfaction of their claims for 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.
(d) After Each of the Paying Agent, 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 Ordinary Shares or Company Options (and in connection with any assumption, conversion or replacement of any Company Options) such amounts as Parent reasonably determines is required to be deducted or withheld therefrom or in connection therewith under the Code, under the Israeli Income Tax Ordinance [New Version], 1961, as amended, or under any provision of state, local or non-U.S. Tax law or under any other applicable Legal Requirement, provided that, with respect to any withholding under Israeli Legal Requirements, the Paying Agent, Parent and the Surviving Corporation shall act in accordance with the Israeli Withholding Tax Pre-Ruling, if obtained. If the Israeli Option Tax Pre-Ruling contemplated by Section 5.3(b)(i)(C) is obtained, then, at the request of the holder of any Company Ordinary Shares held in trust under a “Section 102 Plan” at the Effective Time, there the Paying Agent will make payment of the Merger Consideration that such holder is entitled to receive in exchange for such Company Ordinary Shares directly to the “Section 102 Plan” trustee in accordance with the terms of such ruling. To the extent such amounts are so deducted or withheld, such amounts shall be no transfers on treated for all purposes under this Agreement as having been paid to the stock transfer books of Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the liable to any holder or former holder of Company Ordinary Shares or to any other Person with respect to any Merger Consideration delivered to any public official pursuant to any applicable Merger Considerationabandoned property law, as provided in this Article I, subject to applicable escheat law in the case of Dissenting Sharesor similar Legal Requirement.
Appears in 2 contracts
Sources: Merger Agreement (Shopping Com LTD), Merger Agreement (Ebay Inc)
Exchange of Certificates. (a) From and Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to MGI to act as paying agent in the Merger (the "Paying Agent"), and, from time to time on, prior to or after the Effective Time, a bank Parent shall make available, or trust company cause the Surviving Corporation to be designated by FKW Sub and reasonably acceptable make available, to the Company (Paying Agent funds in amounts and at the "Exchange Agent") shall act as exchange agent in effecting times necessary for the exchange payment of the Merger Consideration for upon surrender of certificates representing MGI Shares entitled (it being understood that any and all interest earned on funds made available to payment the Paying Agent pursuant to Section 1.6 this Agreement shall be turned over to Parent).
(b) As soon as reasonably practicable after the Effective Time, the Paying Agent shall mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented MGI Shares (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange AgentPaying Agent and shall be in a form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by into which the number of MGI Shares theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 2.05, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchangedIn the event of a transfer of ownership of MGI Shares that is not registered in the transfer records of MGI, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall payment may be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid made to a Person person other than the Person person in whose name the Certificate so surrendered in exchange therefor is registered, if such Certificate shall be accompanied by all documents required to evidence properly endorsed or otherwise be in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.07, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed at any time after the Effective Time to a holder of represent only the right to receive upon such surrender the Merger Consideration, without interest, into which the MGI Shares for any theretofore represented by such Certificate shall have been converted pursuant to Section 2.05. No interest will be paid or will accrue on the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawspayable upon the surrender of any Certificate.
(c) Promptly following All Merger Consideration paid upon the date which is 180 days after surrender of Certificates in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the MGI Shares theretofore represented by such Certificates. At the Effective Time, the Exchange Agent's duties stock transfer books of MGI shall terminatebe closed, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe MGI Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentPaying Agent for any reason, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article III.
(d) At any time following six months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which had been made available to the Paying Agent and which have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of a Certificate for Merger Consideration delivered to a public official pursuant to any applicable law in the case of Dissenting Sharesabandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Family Golf Centers Inc), Merger Agreement (Metrogolf Inc)
Exchange of Certificates. (a) From and after Upon the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent (the "Exchange Payment Agent") shall act as exchange payment agent in effecting the exchange of exchange, for the Merger Consideration for multiplied by the number of Shares formerly represented thereby, of certificates representing (the "Certificates") that, prior to the Effective Time, represented Shares entitled to payment pursuant to Section 1.6 (the "Certificates"2.5(a)(i). At or prior to Upon the Effective Time, FKW Sub the Parent shall, or shall 16 cause the Purchaser to, deposit with the Exchange Payment Agent in trust for the amount benefit of the holders of Certificates, as needed to pay for surrendered Shares as provided in this Section 2.6, within such time as is necessary to enable for the Exchange Payment Agent to exchange make the requisite payments for Shares, immediately available funds in an aggregate amount (the "Payment Fund") equal to the product of the Merger Consideration for Certificates received multiplied by the Exchange Agent.
(b) number of Shares entitled to payment pursuant to Section 2.5(a)(i). Promptly after the Effective Time, the Exchange Agent Parent or the Purchaser shall mail cause to be mailed to each record holder of Certificates that immediately prior to the Effective Time represented Shares 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, such Certificate together with such a duly completed and executed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Payment Agent shall promptly pay the holder of such Certificate the Merger Consideration multiplied by the number of Shares formerly represented by such Certificate, without any interest thereon, in exchange therefor, and such Certificate shall forthwith be entitled cancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Shares held by the Parent, the Purchaser or the Company or any direct or indirect subsidiary of the Parent, the Purchaser or the Company or Dissenting Shares) shall represent solely the right to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No without any interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesthereon. If any Merger Consideration cash is to be paid to a Person person other than the Person holder in whose name the Certificate representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange payment that the Person person requesting such exchange payment shall pay to the Exchange Payment Agent any transfer or other taxes required by reason of the payment of such Merger Consideration cash to a Person person other than the registered holder of the Certificate surrendered, or such Person person shall establish to the satisfaction of the Exchange Payment Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Payment Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(b) To the extent not immediately required for payment for surrendered Shares as provided in Section 2.6(a), the Payment Fund shall be invested by the Payment Agent, as directed by the Parent (so long as such directions do not impair the rights of holders of Shares or the ability of the Payment Agent to timely pay the Merger Consideration), in direct obligations of the United States of America, 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, commercial paper rated of the highest quality by Mood▇'▇ ▇▇▇estors Services, Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a commercial bank having at least $300,000,000 in assets (a "Qualified Commercial Bank"); and any net earnings with respect thereto shall be paid to the Parent as and when requested by the Parent.
(c) The Payment Agent shall, pursuant to irrevocable instructions, make the payments referred to in Section 2.5(a)(i) out of the Payment Fund. Promptly following the date which that is 180 days six months after the date of the Effective Time, the Exchange Payment Agent shall deliver to the Parent all cash, certificates and other documents in its possession relating to the transactions described in this Agreement, and the Payment Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate formerly representing a Share may surrender such Certificate to the Surviving Corporation along with or the applicable letter of transmittal Parent and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereon, but shall have no greater rights against the Surviving Corporation or the Parent than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Parent under applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shareslaw.
Appears in 2 contracts
Sources: Merger Agreement (Lumen Technologies Inc), Merger Agreement (Eg&g Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Buyer (the "Exchange AgentEXCHANGE AGENT") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares Certificates which, prior to the Effective Time, represented shares of Seller Common Stock or Seller Preferred Stock, as the case may be, entitled to payment pursuant to Section 1.6 (the "Certificates")2.05 hereof. At or immediately prior to the Effective Time, FKW Sub Buyer shall deposit with the Exchange Agent the amount aggregate Merger Consideration necessary to enable make the payments contemplated hereby on a timely basis (the "DEPOSIT AMOUNT") in trust for the benefit of the holders of Certificates. Upon the surrender of each such Certificate and the issuance and delivery by the Exchange Agent to exchange of the Merger Consideration for applicable thereto in exchange therefor, such Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates received representing shares held by Buyer or Seller or any direct or indirect Subsidiary of Buyer or Seller and Dissenting Shares) shall represent solely the right to receive the Merger Consideration applicable thereto, without interest, multiplied by the Exchange Agent.
(b) number of shares represented by such Certificate. Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates which immediately prior to the Effective Time represented shares 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration thereforapplicable thereto. Upon the surrender to the Exchange Agent of each Certificate, such an outstanding Certificate together with such letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateapplicable thereto, without any interest thereon and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatescancelled. If any Merger Consideration is to be paid to a Person name other than the Person name in whose name which the Certificate representing shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and 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 Merger Consideration to a Person 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 party hereto shall be liable to a holder of Shares shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cb) Promptly following Buyer shall not be entitled to the return of any of the Deposit 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, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate representing a share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateapplicable thereto, 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.
(dc) After At and after the Effective Time, the holders of Certificates to be exchanged for the Merger Consideration applicable thereto pursuant to this Agreement shall cease to have any rights as to stockholders of Seller except for the right to surrender such holder's Certificates in exchange for payment of the Merger Consideration applicable thereto, and after the Effective Time there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled cancelled and exchanged for the Merger Consideration applicable Merger Considerationthereto, as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
(d) 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 subject to such other conditions as the Buyer may impose, the Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect of such Certificate as determined in accordance herewith. When authorizing such payment of the Merger Consideration in exchange for such Certificate, the Buyer (or any authorized officer thereof) may, in its reasonable discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver to the Surviving Corporation a bond in such sum as the Surviving Corporation may reasonably require as indemnity against any claim that may be made against Buyer, the Surviving Corporation or the Exchange Agent with respect to the Certificate alleged to have been lost, stolen or destroyed.
(e) The provisions of this Section 2.09 shall also apply to Dissenting Shares that lose their status as such, except that the obligations of Exchange Agent under this Section 2.09 shall commence on the date of loss of such status.
Appears in 2 contracts
Sources: Merger Agreement (Applied Opsec Corp), Merger Agreement (Optical Security Group Inc)
Exchange of Certificates. (a) From and after time to time following the Effective Time, Parent shall deliver to its transfer agent, or a bank depository or trust company to be designated institution of recognized standing selected by FKW Sub Parent and Acquisition and reasonably acceptable satisfactory to the Company (the "Exchange Agent") shall act as exchange agent in effecting ), for the exchange benefit of the holders of Shares for exchange in accordance with this Article 2, an amount of cash equal to the aggregate Merger Consideration for certificates representing Shares entitled to payment then payable pursuant to Section 1.6 2.8 (such amount of cash is hereinafter referred to as the "CertificatesExchange Fund"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to in exchange the Merger Consideration for Certificates received by the Exchange Agentoutstanding Shares.
(b) Promptly after the Effective Time, but in no event more than three business days thereafter, the Exchange Agent shall mail to each record holder of Certificates 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 Merger Consideration pursuant to Section 2.8: (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 AgentAgent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in surrendering effecting surrender of the Certificates in exchange for Merger Consideration; provided, however, that such letter of transmittal shall be substantially in the form and receiving substance of a letter of transmittal and instructions approved by the Merger Consideration thereforCompany at or before the Closing, such approval not to be unreasonably withheld. Upon the surrender of each Certificatea Certificate for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to a check representing the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchangedIn the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, each a check representing the proper amount of Merger Consideration may be issued to a transferee if the Certificate representing such Certificate shall represent solely the right to receive an amount equal Shares is presented to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be Exchange Agent accompanied by all documents required to evidence and effect such transfertransfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.10, and it each Certificate shall be a condition deemed at any time after the Effective Time to represent only the right to receive upon such exchange that surrender the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsConsideration.
(c) Promptly following In the date which is 180 days after the Effective Timeevent that any Certificate for Shares shall have been lost, stolen or destroyed, the Exchange Agent's duties Agent shall terminateissue in exchange therefor upon the making of an affidavit of that fact by the holder thereof the Merger Consideration; provided, and any funds deposited with however, that Parent or the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to may, in its discretion, require the Surviving Corporation upon demand. Thereafter, each holder delivery of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal reasonable and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationcustomary bond or indemnity.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I2.
(e) Any portion of the Exchange Fund that remains undistributed to the stockholders of the Company upon the expiration of one hundred eighty (180) days after the Effective Time shall be delivered to Parent upon demand and any stockholders of the Company who have not theretofore complied with this Article 2 shall thereafter look only to Parent as general creditors for payment of their claims for Merger Consideration.
(f) Neither Parent nor Acquisition nor the Company shall be liable to any holder of Shares for any amount of cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, subject to applicable law in the case of Dissenting Sharesescheat or similar Applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Intel Corp), Merger Agreement (DSP Communications Inc)
Exchange of Certificates. (a) From At the Closing, Counsel and after the Effective Timeother Company shareholders shall surrender its Certificate or Certificates, a bank with such stock powers executed in blank or trust company to be designated by FKW Sub and reasonably acceptable otherwise in proper form for transfer to the Company (Purchaser as the "Exchange Agent") shall act as Purchaser may reasonably request in exchange agent in effecting for the exchange portion of the Merger Consideration for certificates representing Shares entitled to payment into which the shares of Company Common Stock represented by such Certificate or Certificates shall have been converted pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforthis Agreement. Upon such surrender, Counsel and the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate other Company shareholders shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by to which Counsel and the number other Company shareholders shall have become entitled pursuant to the provisions of Shares represented by such Certificate, this Article II and such the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any cash constituting Merger Consideration and any unpaid dividends and distributions, if any, payable to holders of Certificates. Until so surrendered and exchangedin accordance with the provisions of this Section 2.11, each such Certificate (other than Certificates canceled pursuant to Section 2.7(b)) shall represent solely for all purposes only the right to receive an amount equal to the Merger Consideration multiplied provided for by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registeredthis Agreement, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawswithout interest.
(cb) Promptly following the date which is 180 days No dividends or other distributions declared after the Effective Time, Time with respect to the Exchange Agent's duties shall terminate, Purchaser Common Stock and any funds deposited with payable to the Exchange Agent that remain unclaimed by holders of Certificates record thereof shall be paid to the Surviving Corporation upon demandholder of any unsurrendered Certificate until the holder thereof shall surrender such Certificate in accordance with this Article II. Thereafter, each holder After the surrender of a Certificate may surrender in accordance with this Article II, the record holder thereof shall be entitled to receive any such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificatedividends or other distributions, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded which theretofore had become payable with respect to general creditors shares of the Surviving CorporationPurchaser Common Stock, if any, represented by such Certificate.
(dc) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares of Company Common Stock. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentCorporation, they shall be canceled and exchanged for the applicable Merger Consideration, Consideration as provided for, and in accordance with, the provisions of this Article ISection 2.11.
(d) In the event any Certificate shall have been lost, subject stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to applicable law be lost, stolen or destroyed and, if required by the Purchaser, the posting by such person of a bond in such amount as the case Purchaser reasonably may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Purchaser will issue in exchange for such lost, stolen or destroyed Certificate the cash and shares of Dissenting SharesPurchaser Common Stock deliverable in respect thereof pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (I Link Inc), Merger Agreement (Counsel Corp)
Exchange of Certificates. (a) From and Parent shall authorize one or more Persons reasonably acceptable to the Company to act as Exchange Agent hereunder (the “Exchange Agent”). Promptly after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") Parent shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable cause the Exchange Agent to mail, to former record holders of Company Shares who have not previously submitted letters of transmittal together with Certificates, instructions for surrendering their Certificates in exchange for the Merger Consideration for Certificates received by the Exchange AgentConsideration.
(b) Promptly after the Effective Time, Parent shall deliver to the Exchange Agent shall mail sufficient Parent Shares and cash to each record holder satisfy the Merger Consideration. 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, and risk of loss of, and title to to, the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates other requested documents and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions theretothereon, the holder of such Certificate Certificates shall be entitled to receive in exchange therefor an amount equal to (i) a certificate representing that number of whole shares of Parent Common Stock into which the Merger Consideration multiplied Company Shares theretofore represented by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until Certificates so surrendered shall have been converted pursuant to Section 1.5 and exchanged, each such Certificate shall represent solely (ii) a check in the right amount of any cash due pursuant to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateSection 1.5. No interest shall be paid or shall accrue on any such amounts.
(c) Until surrendered in accordance with the provisions of this Section 1.8, each Certificate shall represent for all purposes only the right to receive Merger Consideration and, if applicable, amounts under Section 1.12. Parent Shares into which Company Shares shall be converted in the Merger Consideration payable upon at the surrender of Effective Time shall be deemed to have been issued at the CertificatesEffective Time. If any Merger Consideration is certificates representing Parent Shares are to be paid to issued in a Person name other than the Person that in whose name which the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange that the Person requesting such exchange shall deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and pay to the Exchange Agent any transfer or other taxes required by reason of the payment issuance of such Merger Consideration to a Person certificate representing Parent Shares in 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 party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following Beginning on the date which is 180 days after twelve months following the Effective TimeClosing Date, the Exchange Agent's duties Parent shall terminate, and any funds deposited with act as the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each and thereafter any holder of a an unsurrendered Certificate may surrender shall look solely to Parent for any amounts to which such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than holder may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article Idue, subject to applicable law in law. Notwithstanding any other provisions of this Agreement, any portion of the case Merger Consideration remaining unclaimed five 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 Entity) shall, to the extent permitted by law, become the property of Dissenting SharesParent free and clear of any claims or interest of any person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Precision Castparts Corp), Merger Agreement (SPS Technologies Inc)
Exchange of Certificates. (a) From and As soon as reasonably practicable after the Effective Time, a bank each holder of an outstanding certificate or trust company to be designated by FKW Sub and reasonably acceptable certificates which prior thereto represented shares of Company Common Stock or Company Preferred Stock shall, upon surrender to the Company Exchange Agent of such certificate(s) and acceptance thereof by the Exchange Agent (together with the "letter of transmittal described in Section 2.2(b), duly executed, and such other documents as may reasonably be required by the Exchange Agent") shall act as exchange agent in effecting ), be entitled to receive the exchange amount of the Merger Consideration for certificates representing Shares entitled to payment into which the number of shares of Company Common Stock or Company Preferred Stock previously represented by such certificate(s) so surrendered shall have been converted pursuant to Section 1.6 (the "Certificates")this Agreement. At or prior to After the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify that delivery there shall be effected, and risk of loss and title to no further transfer on the Certificates shall pass, only upon proper delivery records of the Certificates Company or its transfer agent of certificates representing shares of Company Common Stock and Company Preferred Stock which have been converted pursuant to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely this Agreement into the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by Consideration, and if such Certificate. No interest certificates are presented for transfer, they shall be paid or accrue on cancelled against delivery of the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration is to be paid delivered to a any Person other than the Person in whose name the Certificate certificate(s) representing shares of Company Common Stock or Company Preferred Stock surrendered in for exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange that the certificate(s) so surrendered shall be properly endorsed with the signature guaranteed or otherwise in proper form for transfer, and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such the Merger Consideration to a Person other than the registered holder of the Certificate surrenderedthereof, or such Person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.2(a), neither the Exchange Agent nor any party hereto shall be liable each certificate which, prior to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, represented outstanding shares of Company Common Stock or Company Preferred Stock (other than shares cancelled pursuant to Section 1.8(b) and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates Dissenting Shares) shall be paid deemed at any time after the Effective Time to represent only the Surviving Corporation right to receive upon demand. Thereafter, each holder of a Certificate may such surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number in accordance with Section 1.8. No interest will be paid or will accrue on any cash payable as Merger Consideration to any holder of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors shares of the Surviving CorporationCompany Common Stock or Company Preferred Stock.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 2 contracts
Sources: Merger Agreement (Jack Miller Family Limited Partnership 1), Merger Agreement (Successories Inc)
Exchange of Certificates. (a) From and As soon as practicable after the Effective Timeexecution and delivery of this Agreement and, in any event, not less than five Trading Days prior to the mailing to holders of Common Shares of the Registration Statement (as defined in Section 8.4), Parent shall designate a bank or trust company to (or such other person or persons as shall be designated by FKW Sub and reasonably acceptable to Parent and the Company Company) to act as exchange agent (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or Certificates that, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary represented Common Shares (other than Certificates representing Common Shares to enable the Exchange Agent be canceled pursuant to exchange the Section 3.1(b) or Dissenting Shares) for Merger Consideration for Certificates received by the Exchange Agent.
(bpursuant to Section 3.1(a) hereof. Promptly after the Effective Time, the Exchange Agent Surviving Corporation shall mail cause to be mailed to each record person who was, at the Effective Time, a holder of Certificates record of Common Shares entitled to receive the Merger Consideration pursuant to Section 3.1(a) 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 proper delivery of the such Certificates to the Exchange Agent) and instructions for use in surrendering effecting the surrender of the Certificates and receiving the Merger Consideration thereforpursuant to such letter of transmittal. Upon the surrender of each such Certificate, together with such letter of transmittal duly completed and validly executed and completed in accordance with the instructions thereto, the Exchange Agent shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Common Shares formerly represented by such CertificateCertificate in exchange therefor, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Common Shares to be canceled in accordance with Section 3.1(b)) shall represent solely the right to receive Merger Consideration. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an amount equal to the Merger Consideration multiplied affidavit of that fact by the number of Shares represented person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Certificate. No interest shall person of a bond in customary form and amount as indemnity against any claim that may be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and made against it shall be a condition with respect to such exchange that the Person requesting such exchange shall pay to Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration, without any transfer interest or dividends or other taxes required by reason payments thereon, otherwise deliverable upon due surrender of any such Certificate pursuant to this Agreement.
(b) As of or promptly after the Effective Time, Parent shall deposit the Warrant Consideration and deposit or cause to be deposited the Cash Consideration, in trust with the Exchange Agent, for the benefit of the payment holders of such Merger Consideration to a Person other than the registered holder of the Certificate surrenderedCommon Shares, 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsexchange in accordance with this Article III.
(c) The cash portion of the aggregate Merger Consideration shall be invested by the Exchange Agent, as directed by and for the benefit of the Surviving Corporation, provided that such investments shall be limited to direct obligations of the United States of America, 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, commercial paper rated of the highest quality by Mood▇'▇ ▇▇▇estors Service, Inc. ("Moody's") or Standard & Poor's Ratings Group, a division of McGr▇▇-▇▇▇▇, ▇▇c. ("S&P"), and certificates of deposit issued by a commercial bank whose long-term debt obligations are rated at least A2 by Moody's or at least A by S&P, in each case having a maturity not in excess of one year.
(d) Promptly following the date which is 180 days six months after the Effective Time, the Exchange Agent shall deliver to the Surviving Corporation all cash, Common Shares, Parent Warrants, Certificates and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar lawslaws and, in the case of Dissenting Shares, subject to applicable law) receive in exchange therefor an amount equal to the applicable Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest or dividends or other payments thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(de) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Common Shares. If, after the Effective Time, Certificates formerly representing Common Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and (subject to applicable abandoned property, escheat and similar laws and, in the case of Dissenting Shares, subject to applicable law) exchanged for the applicable Merger Consideration, as provided in this Article IIII.
(f) Subject to and without derogation of the obligations of Parent under Section 8 of the Warrant Agreement, subject the Surviving Corporation and the Exchange Agent shall be entitled to applicable law deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Common Shares and/or Company Options such amounts that the Surviving Corporation or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the "Code"), the rules and regulations promulgated thereunder or any provision of state, or local or foreign tax law. To the extent there is withholding imposed on the Merger Consideration, the full amount required to be withheld shall be satisfied from the Cash Consideration. To the extent that amounts are so withheld by the Surviving Corporation or the Exchange Agent, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Common Shares and/or Company Options in respect of which such deduction and withholding was made by the case of Dissenting SharesSurviving Corporation or the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Petrofina Delaware Inc), Merger Agreement (Fina Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company Prior to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange receiving any portion of the Merger Consideration for Consideration, each holder of record of a certificate or certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that immediately prior to the Effective Time, FKW Sub Time represented issued and outstanding shares of Company Stock (the “Certificates”) shall deposit with have delivered to the Exchange Paying Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a properly completed and duly executed letter of transmittal in a form and substance reasonably satisfactory to the Paying Agent and the Purchaser (which a “Letter of Transmittal”) and (ii) the Certificates held of record by such holder. Such Letter of Transmittal shall specify have been previously delivered by the Paying Agent to such holder along with instructions thereto and a notice providing that delivery of the Certificates shall be effected, and that risk of loss and title to the Certificates shall pass, pass only upon proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificatea Certificate to the Paying Agent, together with such letter Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by into which the number of Shares shares represented by such CertificateCertificate shall have been converted pursuant to Section 2.5(a), and such the Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely If the right to receive an amount equal to portion of the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall to be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration with respect to such shares is to be paid to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer, and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration exchange to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the reasonable satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.6(a), neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed as of the Effective Time to represent only the right to receive, upon surrender of such Certificate in accordance with this Section 2.6(a), the Merger Consideration into which the shares of Common Stock shall have been converted pursuant to Section 2.5(a). If any Certificate shall have been lost, stolen or destroyed, the Paying Agent may, in its discretion and as a holder condition precedent to the issuance of Shares for any Merger Consideration delivered to a public official in respect thereof pursuant to applicable abandoned propertySection 2.5(a), escheat and similar lawsrequire the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit or indemnity agreement with respect to such Certificate.
(cb) Promptly following All Merger Consideration paid upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited surrender of Certificates in accordance with the Exchange Agent that remain unclaimed by holders terms of Certificates this Article II shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the Surviving Corporation upon demand. Thereafter, each holder shares of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares Common Stock represented by such CertificateCertificates, 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.
(d) After the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares of the Common Stock that were issued and outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable portion of the Merger Consideration, Consideration as provided in this Article III.
(c) Subject to applicable Laws, at any time following the first anniversary of the Closing Date, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) that had been made available to the Paying Agent and which have not been disbursed to the Stockholders, and, thereafter, such Stockholders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the payment of any Merger Consideration that would otherwise be payable upon surrender of any Certificates held by such Stockholders, as determined pursuant to this Agreement, without any interest thereon. Any amounts remaining unclaimed by such Stockholders at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable law Laws, the property of the Purchaser, free and clear of all claims or interests of any Person previously entitled thereto. Notwithstanding the foregoing, none of the Purchaser, Merger Sub or the Surviving Corporation shall be liable to any former Stockholders for any portion of the Merger Consideration or interest thereon properly delivered to a public official pursuant to any applicable abandoned property, escheat or other similar Law.
(d) The Paying Agent, the Purchaser, Merger Sub or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from the portion of the Merger Consideration otherwise payable pursuant to this Agreement to any Stockholders such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law; provided, however, that the Paying Agent must be provided with prior written notice by the Purchaser, Merger Sub or the Surviving Corporation of any such required withholding at least five (5) days’ prior to the date of such payment. To the extent that amounts are so withheld, (i) such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Stockholders in respect of which such deduction and withholding was made and (ii) the case Paying Agent, the Purchaser, the Company or the Surviving Corporation (as appropriate) shall provide such Stockholders written notice of Dissenting Sharesthe amounts so deducted or withheld.
Appears in 1 contract
Sources: Merger Agreement (Aramark)
Exchange of Certificates. (a) From and after Following the date hereof, the parties will engage ▇▇▇▇▇▇▇▇▇ Shaham Trusts Ltd. (the “Paying Agent”), to act as Paying Agent under this Agreement for the purpose of effecting the exchange of consideration for Company certificates that, immediately prior to the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the represented Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates")Section 2.3. At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after following the Effective Time, the Exchange Paying Agent shall mail send to each record holder Equityholder a Letter of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each CertificateTransmittal, together with instructions for the completion and return thereof. The Paying Agent shall pay each holder of certificates representing Company Shares who has surrendered his, her or its certificates representing such letter of transmittal Company Shares, together with a duly executed and completed letter of transmittal substantially in accordance the form which will be reasonably agreed between the Parties (“Letter of Transmittal”), and, with respect to Company Shareholders who are individuals and residents in a jurisdiction that follows the instructions theretocommunity property regime, a duly executed Spousal Consent, the holder amount of such Certificate Purchaser Share Consideration to which he, she or it is entitled under Section 2.3 as of the Effective Time (to avoid doubt, excluding any Post-Closing Payment Amounts or Earn-out Payment Amounts), which amount shall be entitled to receive in exchange therefor an amount equal transferred to the Merger Consideration multiplied Paying Agent within two Business Days after the later of (A) the Effective Time and (B) the date on which the Paying Agent receives such Equityholder’s duly completed Letter of Transmittal, certificate(s) and other documents, if any, reasonably required by the number Paying Agent for the purposes of Shares represented by making such Certificate, and such Certificate shall be canceledtransfer (“Transmittal Documents”). Until so surrendered and exchanged, each such Certificate certificate shall represent solely the right to receive an amount equal to the applicable portion of the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is pursuant to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 applicableSection 2.3. Notwithstanding the foregoing, neither if any such certificate shall have been lost, stolen or destroyed, then, upon the Exchange making of an affidavit of such fact and the granting of a standard indemnity with respect thereto by the Person claiming such certificate to be lost, stolen or destroyed, the Paying Agent nor any party hereto shall be liable to a holder disburse, in exchange for such lost, stolen or destroyed certificate, the applicable portion of Shares for any the Merger Consideration delivered to a public official be paid in respect of the Company Shares represented by such certificate pursuant to applicable abandoned propertySection 2.3, escheat and similar lawsas contemplated by this Section 2.8(a).
(cb) Promptly following Any portion of the date which is 180 days Merger Consideration deposited with the Paying Agent pursuant to Section 2.8(a) or Section 2.10 below that remains unclaimed by the Equityholders one year after the Effective TimeTime - with respect to the Closing Consideration, or, one year after the Exchange Agent's duties shall terminateMilestone Achievement Date – with respect to each payment of any Earn-out Payment Amount, will be returned to the Surviving Corporation, and any funds deposited Equityholder who has not delivered to the Paying Agent the applicable Letter of Transmittal, Transmittal Documents and, as applicable, Share certificates (or in the event that any Share certificate has been lost, stolen or destroyed, provided an affidavit in accordance with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid Section 2.8(a)) in each case prior to such time, will thereafter look only to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationfor payment thereof.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after Prior to the Effective Time, ------------------------ Parent shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as paying agent (the "Exchange Paying Agent") shall act as exchange agent in effecting the exchange of ------------ for the Merger Consideration for of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or ) that, prior to ------------ the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforrepresented Shares. Upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such a properly completed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Paying Agent shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares formerly represented by such Certificate, in exchange therefor, and such Certificate shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Merger Sub or the Company, or any direct or indirect subsidiary thereof) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration (or any portion thereof) is to be paid delivered to a any Person (as defined in Section 8.8) other than the Person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes (as defined in Section 3.11) required by reason of the payment of such the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable. Notwithstanding .
(b) Prior to the foregoingEffective Time, neither Parent or Merger Sub shall deposit, or cause to be deposited, in trust with the Exchange Paying Agent nor any party hereto for the benefit of the holders of Shares the aggregate Merger Consideration to which holders of Shares shall be liable entitled at the Effective Time pursuant to a holder Section 1.8(a); provided -------- that no such deposit shall relieve Parent of Shares for any its obligation to pay the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsSection 1.8(a).
(c) The Merger Consideration shall be invested by the Paying Agent, as directed by Parent, provided such investments shall be limited to direct obligations of the United States of America, 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, commercial paper rated of the highest quality by ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a commercial bank having at least $1,000,000,000 in assets; provided, that no loss on investments made pursuant to -------- this Section 2.2(c) shall relieve Parent of its obligation to pay the Merger Consideration pursuant to Section 1.8(a).
(d) Promptly following the date which is 180 days six months after the Effective Timetime, the Exchange Paying Agent shall deliver to Parent all cash and documents in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate formerly representing a Share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, 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.
(de) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of Certificates that immediately prior to the Effective Time represented Shares a form of letter of transmittal and instructions for use in surrendering such Certificates and receiving the Merger Consideration in exchange therefor.
(f) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
(g) 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 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 Paying Agent will pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect therefor pursuant to this Agreement.
Appears in 1 contract
Exchange of Certificates. (a) From and after Prior to the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company shall designate an Exchange Agent to act as exchange agent (the ""Exchange Agent"") shall act as exchange agent in effecting the exchange of for the Merger Consideration for of certificates representing Shares entitled to payment pursuant to Section 1.6 (the ""Certificates"). At or ") that, prior to the Effective Time, FKW Sub shall deposit represented Shares. Upon the surrender of each such Certificate formerly representing Shares, together with a properly completed letter of transmittal described in Section 1.10(b) below, the Exchange Agent shall issue in respect thereof a common share certificate of the amount necessary Company representing the Merger Consideration (a ""Company Certificate"") multiplied by the number of Shares formerly represented by each such Certificate, in exchange therefor, and each such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to enable receive the Merger Consideration. If the Merger Consideration is to be delivered to any person other than the person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, it shall be a condition to such exchange that the Certificate so surrendered shall be properly endorsed or accompanied by a stock power and shall otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent to exchange any transfer or other taxes required by reason of the delivery of the Merger Consideration for Certificates received by to a person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange AgentAgent that such taxes have been paid or are not applicable.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates that immediately prior to the Effective Time represented Shares 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawstherefor.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article I, subject to applicable law in the case of Dissenting SharesSection 1.10.
Appears in 1 contract
Sources: Acquisition Agreement (Zim Corp)
Exchange of Certificates. (a) From and after the Effective Time, E-Stamp shall designate a bank or trust company to (which bank or trust company shall be designated by FKW Sub and reasonably acceptable to the Company Learn2) to act as exchange agent for Learn2 Stockholders (the "Exchange Agent") shall act as exchange agent in effecting the exchange of connection with the Merger Consideration for certificates representing to hold -------------- the E-Stamp Shares to which Learn2 Stockholders shall become entitled to payment pursuant to Section 1.6 (the "Certificates"2.01(b). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly As soon as reasonably practicable after the Effective Time, but in no event later than five (5) Business Days after the Closing, E-Stamp shall cause the Exchange Agent shall to mail to each record holder of Certificates record of a Certificate or 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 proper delivery of the Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions not inconsistent with this Agreement as E-Stamp may specify, subject to reasonable approval by Learn2) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each CertificateCertificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by E-Stamp, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares for each Learn2 Share formerly represented by such Certificate, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender If delivery of the Certificates. If any Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such exchange delivery shall pay to the Exchange Agent have paid any transfer or and other taxes required by reason of the payment of such the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, surrendered or such Person shall establish have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax either has been paid or is not applicable. Until surrendered as contemplated by this Section 2.02, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration for such Shares in cash as contemplated by this Section 2.02.
(c) At the Effective Time, the stock transfer books of Learn2 shall be closed, and thereafter there shall be no further registration of transfers of the Shares on the records of Learn2. From and after the Effective Time, the holders of Certificates evidencing ownership of the Learn2 Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares, except as otherwise provided for herein or by applicable law.
(d) At any time following one year after the Effective Time, E-Stamp and the Surviving Corporation shall be entitled to require the Exchange Agent to deliver to it any E-Stamp Shares (including any earnings received with respect thereto) that had been made available to the Exchange Agent and that have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) and only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Exchange Agent nor any party hereto shall be liable to a any holder of Shares a Certificate for any the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat and or similar lawslaw.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Merger Agreement (E Stamp Corp)
Exchange of Certificates. (a) From and after At the Effective TimeClosing, each holder of record of a bank certificate or trust company to be designated by FKW Sub and reasonably acceptable to the Company certificates (the "Exchange Agent"“Certificates”) shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or which immediately prior to the Effective Time, FKW Sub Time represented Outstanding Avant Capital Stock shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the tender such Certificates to American Liberty or its designated transfer or exchange agent along with a completed and executed transmittal letter substantially in the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforform of Exhibit D (“Transmittal Letter”), along with such other documents as American Liberty may reasonably request, including a stock power. Upon the surrender of each Certificate, a Certificate for cancellation to American Liberty together with a completed and executed Transmittal Letter and such letter of transmittal duly executed and completed in accordance with the instructions theretodocuments as may be required, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to therefore the Merger Consideration multiplied by the number of Shares represented by which such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely holder has the right to receive an amount equal in respect of American Liberty Capital Stock formerly represented by such Certificates, together with any dividends or other distributions to which such holder is entitled pursuant to Section 2.07(b). The surrendered Certificates shall then be marked canceled. In the event of a transfer of ownership of Avant Capital Stock which is not registered in the transfer records of Avant and, the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall may be paid or accrue on in accordance with Article 2 to the Merger Consideration payable upon transferee if the surrender Certificates representing such shares of the Certificates. If any Merger Consideration is Avant Capital Stock are presented to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registeredAmerican Liberty, such Certificate shall be accompanied by a completed and executed Transmittal Letter along with all documents required to evidence and effect such transfertransfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.07(a), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive, upon such surrender, the Merger Consideration, and it any dividends or other distributions to which such holder is entitled pursuant to Section 2.07(b). No interest shall be paid on the Merger Consideration.
(b) No dividends or other distributions declared or made after the Effective Time with respect to American Liberty Common Stock with a condition record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Common Stock evidenced thereby until the holder 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 holder of such Certificate, in addition to the shares of American Liberty Common Stock as provided in Section 2.07(a), without interest, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to the whole shares of Avant Common Stock evidenced by such Certificate.
(c) The Merger Consideration issued or paid upon conversion of the Outstanding Avant Capital Stock in accordance with the terms hereof (including any cash paid or other distributions pursuant to Sections 2.07(b) shall be deemed to have been issued or paid in full satisfaction of all rights pertaining to such exchange that Avant Capital Stock.
(d) Neither American Liberty nor the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 Surviving Company shall be liable to a holder of Shares Avant and for any Merger Consideration (or dividends or distributions with respect thereto) which remains undistributed to the holders of Avant Capital Stock for one year after the Effective Time and is delivered to a public official pursuant to any applicable abandoned property, escheat and or similar lawslaw.
(ce) Promptly following If the date which is 180 days after representation of ownership of any Certificate shall have been lost, stolen or destroyed, upon the Effective Time, making of an affidavit of that fact by the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender Avant Stockholder claiming such Certificate to be lost, stolen or destroyed and, if required by Avant, the Surviving Corporation along posting by such Avant Stockholder of a bond in such reasonable amount as Avant may direct as indemnity against any claim that may be made against it with the applicable letter of transmittal and (subject respect to applicable abandoned propertysuch Avant Certificate, escheat and similar laws) receive American Liberty will issue in exchange therefor an amount equal to for such lost, stolen or destroyed Certificate the Merger Consideration, and unpaid dividends and distributions on the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded deliverable in respect thereof pursuant to general creditors of the Surviving Corporationthis Reorganization Agreement.
(df) After the Effective Time, there No certificates or script evidencing fractional shares of American Liberty Common Stock shall be no transfers on issued upon the stock transfer books surrender for exchange of the Surviving Corporation Certificates, but in lieu thereof each equity holder of any Shares. IfAvant and who would otherwise be entitled to receive a fraction of a share of American Liberty Common Stock, after aggregating all fractional shares of Avant Common Stock which such holder would be entitled to receive under Section 2.06, shall receive the Effective Time, Certificates are presented next larger number of whole shares of American Liberty Common Stock to the Surviving Corporation or the Exchange Agent, they shall which such holder would otherwise be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Sharesentitled.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (American Liberty Petroleum Corp.)
Exchange of Certificates. (a) From Pursuant to an agreement, to be entered into on or before the Closing Date among Bionova U.S., the Company, and after the Effective Timesuch designee, Bionova U.S. shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as exchange agent in the Merger (the "Exchange Agent") shall act as exchange agent in for purposes of effecting the exchange of for the Merger Consideration for of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that, immediately prior to the Effective Time, FKW Sub represented shares of Company Stock entitled to receive the Merger Consideration pursuant to Section 2.1 ("Certificates"). Upon the surrender to the Exchange Agent of each Certificate, together with the letter of transmittal contemplated by Section 2.3(f) duly completed and executed, the Exchange Agent shall pay the holder of such Certificate the applicable Merger Consideration in exchange therefor, and such Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive the applicable Merger Consideration and any amounts to which the holder thereof is entitled pursuant to Sections 2.3(c) and (d). No interest shall be paid or accrue on the Merger Consideration. If the Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition to such exchange that (i) the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and (ii) the person requesting such exchange shall pay to the Exchange Agent any transfer or other Taxes required by reason of the payment of the Merger Consideration to a person other than 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. Bionova U.S. may impose such other reasonable conditions upon the exchange of Certificates as it may deem necessary or desirable and as are consistent with the provisions of this Agreement. Bionova U.S. Common Stock into which Company Stock shall be converted pursuant to this Agreement and the Merger shall be deemed to have been issued at the Effective Time; provided, however, that, subject to Applicable Law, no holder of an unsurrendered Certificate shall be entitled, until the surrender of such Certificate, to vote the shares of Bionova U.S. Common Stock into which his or her Company Stock shall have been converted.
(b) At or immediately prior to the Effective Time, Bionova U.S. shall deposit, or cause to be deposited, in trust with the Exchange Agent stock certificates representing the aggregate stock Merger Consideration to which holders of shares of Company Stock shall be entitled at the Effective Time pursuant to Section 2.1 (the "Payment Fund"). The Exchange Agent shall, pursuant to irrevocable instructions, make the payments or deliveries referred to in Section 2.3(a) out of the Payment Fund. The Payment Fund shall not be used for any other purpose except as expressly provided in this Agreement.
(c) Unless and until a Certificate is surrendered, dividends payable to the holders of record of Bionova U.S. Common Stock shall not be paid to the holder of such Certificate in respect of the Bionova U.S. Common Stock represented thereby, but, subject to applicable abandoned property, escheat, and similar laws, there shall be paid to the holder thereof (i) upon surrender of such Certificate, the amount of any dividends, the record date for the determination of the holders entitled to which shall be after the Effective Time, which theretofore shall have become payable with respect to the whole shares of Bionova U.S. Common Stock represented by such Certificate and issued in exchange upon its surrender, but without interest on such dividends, and (ii) after surrender of such Certificate, the amount of any dividends with respect to such whole shares of Bionova U.S. Common Stock, the record date for the determination of the holders entitled to which shall be after the Effective Time but prior to the surrender of such Certificate, and the payment date of which shall be subsequent to such surrender, such amount to be paid on such payment date.
(d) No certificates or scrip representing fractional shares of Bionova U.S. Common Stock shall be issued upon the surrender for exchange of any Certificate. In lieu of any such fractional share of Bionova U.S. Common Stock, each holder of a Certificate whose aggregate number of shares of Company Stock are not convertible into a whole number of shares of Bionova U.S. Common Stock shall be entitled to receive from the Exchange Agent, upon surrender of such holder's Certificates for exchange as provided above, an amount of cash rounded to the nearest cent (without interest) determined by multiplying such fractional interest by the mean closing sales price of Bionova U.S. Common Stock as reported on NASDAQ National Market System ("NASDAQ NMS") for the ten trading days immediately following the fifth trading day after the Closing Date. After the Closing Date, Bionova U.S. shall deposit with the Exchange Agent the amount necessary to enable Agent, as and when required, cash sufficient for the Exchange Agent to exchange make payment of cash in lieu of fractional shares in accordance with this Section 2.3(d). Notwithstanding the Merger Consideration for Certificates received foregoing, further rules and regulations concerning the settlement of fractional shares otherwise issuable, not inconsistent with this Agreement, may be adopted by Bionova U.S.
(e) Promptly following the date which is one year after the Effective Time, the Exchange Agent shall deliver to Bionova U.S. all cash, certificates, and other documents and instruments in its possession 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 Bionova U.S. and (subject to applicable abandoned property, escheat, and similar laws) receive in exchange therefor the applicable Merger Consideration and any amounts to which such holder is entitled pursuant to Sections 2.3(c) and (d), but such holder shall have no greater rights against Bionova U.S. than may be accorded to general creditors of Bionova U.S. under Applicable Law. Notwithstanding anything in this Agreement to the contrary, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Stock for any cash or other property delivered to a public official pursuant to applicable abandoned property, escheat, or similar laws.
(bf) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a Certificate a form of letter of transmittal (which shall specify that delivery of a Certificate shall be effected, and risk of loss and title to the Certificates a Certificate shall pass, only upon proper delivery of the Certificates Certificate to the Exchange AgentAgent and shall be in such form and contain such other provisions, reasonably acceptable to the Company, as Bionova U.S. shall specify) and instructions for use in surrendering Certificates such Certificate and receiving the applicable Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawstherefor.
(cg) Promptly following the date which is 180 days after At the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation Company shall be closed and no transfers of any SharesCompany Stock shall thereafter be made. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article ISection 2.1, subject to applicable law State Law in the case of Dissenting Shares.
(h) 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, Bionova U.S. shall issue or cause to be issued in exchange for such lost, stolen, or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with Section 2.1. When authorizing such issue of the Merger Consideration in exchange therefor, Bionova U.S. may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed Certificate to give Bionova U.S. a bond in such sum as it may direct as indemnity against any claim that may be made against Bionova U.S. with respect to the Certificate alleged to have been lost, stolen, or destroyed.
(i) Bionova U.S. shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement to any holder of a Certificate such amounts as Bionova U.S. 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 Bionova U.S., such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificate in respect of which such deduction and withholding was made by Bionova U.S.
Appears in 1 contract
Exchange of Certificates. (a) From and after After the Effective TimeTime of the Merger, a each holder (other than Dissenting Stockholders) of an outstanding stock certificate or certificates evidencing Preferred Stock or Common Stock or certificates or agreements evidencing Options (collectively, the "Certificates") shall surrender the same to the Acquiror at Closing or, if later, to such bank or trust company to be designated selected by FKW Sub Acquiror and reasonably acceptable satisfactory to the Company Holder Representative to act as the exchange agent (the "Exchange Agent") on Acquiror's behalf. Upon surrender by a holder of such a Certificate at Closing to the Acquiror plus such other documentation as may be reasonably be required by Acquiror, the Acquiror shall act as exchange agent pay such holder in effecting cash such percentage (the exchange "Applicable Percentage") of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received into which such holder's shares and/or Options evidenced by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to have been converted as a result of the Merger. Any Merger Consideration multiplied not disbursed at Closing (except that portion attributable to shares held by Dissenting Stockholders) by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates Acquiror shall be paid to the Surviving Corporation upon demandExchange Agent (the "Exchange Fund"). Thereafter, each Upon surrender by such a holder of a Certificate may surrender such Certificate his Certificates (other than Certificates held by Dissenting Stockholders) following Closing to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they plus such other documentation as may be reasonably be required by Acquiror, the Acquiror shall cause the Exchange Agent to pay such holder in cash the Applicable Percentage of the Merger Consideration into which such a holder's shares and/or Options shall have been converted as a result of the Merger as specified above, without interest. Pending such surrender and exchange, such a holder's Certificate or Certificates (other than Certificates held by Dissenting Stockholders) shall be canceled and exchanged deemed for all purposes (other than the applicable exchange contemplated by this Section 1.4) to evidence such holder's Applicable Percentage of the Merger Consideration, as Consideration into which such shares and/or Options shall have been converted by the Merger; provided in this Article I, subject to applicable law in the case of Dissenting Shares.that
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective TimeUpon surrender of any Certificates, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company together with duly executed stock powers, (the "Exchange Agent"i) shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At on or prior to the Effective Time, FKW Sub shall deposit with Closing Date to Newco or the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed Surviving Corporation in accordance with the instructions theretoSection 6.2(n), the holder of each Certificate shall receive from the Surviving Corporation on the Closing Date in exchange therefor, and (ii) following the Closing Date to the Surviving Corporation, the holder of each such Certificate shall be entitled to receive from the Surviving Corporation immediately thereafter in exchange therefor an amount equal therefor, the portion of the Merger Consideration, in the form of cash by certified check drawn on a bank located in New York City or wire transfer of immediately available funds (if sufficient wire transfer instructions are submitted by such holder), to which such holder is entitled pursuant to Section 2.8, without interest, less any required withholding of U.S. federal, state or local income Taxes; PROVIDED, that no withholding pursuant to Code Sections 897 and 1445 will be made by Newco, the Company and the Surviving Corporation to the Merger Consideration multiplied by extent that the number of Shares represented by such Certificate, and Company shall have provided the tax affidavit to Newco described in Section 6.2(t). Each such Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid If payment or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration delivery is to be paid made to a Person other than the Person in whose name the a Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on the certificate or any related stock power shall be properly guaranteed and that the Person requesting such exchange shall payment either pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, so surrendered or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax Tax has been paid or is not applicable. Notwithstanding Until surrendered in accordance with the foregoingprovisions of this Section 2.11, neither each Certificate (other than Certificates canceled pursuant to Section 2.8(b) and Dissenting Shares) shall represent for all purposes only the Exchange Agent nor any party hereto right to receive the Merger Consideration in the form provided for by this Agreement, without interest. All cash paid upon surrender of the Certificates in accordance with this Section 2.11 shall be liable deemed to a have been paid in full satisfaction of all rights pertaining to the shares of Common Stock represented thereby.
(b) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the registered holder of Shares such lost, stolen or destroyed Certificate in form and substance acceptable to Newco (if such affidavit is accepted before the Effective Time) or the Surviving Corporation (if such affidavit is accepted after the Effective Time) and accompanied by a bond in an amount satisfactory to Newco (if such affidavit is accepted before the Effective Time) or the Surviving Corporation (if such affidavit is accepted after the Effective Time), the Surviving Corporation will issue in exchange for any such lost, stolen or destroyed Certificate the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat in respect thereof in the manner set forth in Sections 2.8 and similar laws2.11.
(c) Promptly following If Certificates are not surrendered prior to the date which that is 180 days one year after the Effective Time, unclaimed amounts (including interest thereon) of Merger Consideration shall, to the Exchange Agent's duties shall terminateextent permitted by applicable law, become the property of the Surviving Corporation and any funds deposited may be commingled with the Exchange Agent that remain unclaimed by holders general funds of Certificates the Surviving Corporation, free and clear of all claims or interest. Notwithstanding the foregoing, any shareholders of the Company who have not theretofore complied with the provisions of this Section 2.11 shall be paid thereafter look only to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to only as general creditors of thereof for payment for their claims in the Surviving Corporationform and amounts to which such shareholders are entitled.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares of Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentCorporation, they shall be canceled and exchanged for the applicable Merger Consideration, Consideration as provided for, and in accordance with, the provisions of this Article I, subject to applicable law in the case of Dissenting SharesSection 2.11.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Town Sports International Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the -------------- Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, ------------ FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Merger Agreement (Fox Television Stations Inc /De/)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent Surviving Corporation shall mail cause to be mailed to each record Person who was, at the Effective Time, a holder of Certificates record of Shares entitled to receive the Per Share Merger Consideration pursuant to Section 1.07(i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each the Certificates pursuant to such letter of transmittal. Upon surrender to the Paying Agent of a Certificate, together with such letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to therefore the Per Share Merger Consideration multiplied by the number of Shares represented for each Share formerly evidenced by such Certificate, and such Certificate shall then be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall accrue or be paid or accrue on the Per Share Merger Consideration payable upon the surrender of any Certificate for the Certificatesbenefit of the holder of such Certificate. If any the payment equal to the Per Share Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Certificate surrendered in exchange therefor is registeredregistered on the stock transfer books of the Company, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such exchange payment shall pay to the Exchange Agent any have paid all transfer or and other taxes required by reason of the payment of such the Per Share Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish have established to the satisfaction of the Exchange Agent Merger Sub that such tax has taxes either have been paid or is are not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor If any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered is unable to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate holder’s Certificates because such Certificates have been lost, stolen, mutilated or destroyed, such holder may deliver in lieu thereof an affidavit and indemnity bond in form and substance and with surety reasonably satisfactory to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Merger Agreement (Checkers Drive in Restaurants Inc /De)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company Prior to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange receiving any portion of the Merger Consideration for Consideration, each holder of record of a certificate or certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that immediately prior to the Effective Time, FKW Sub Time represented issued and outstanding shares of Company Stock (the “Certificates”) shall deposit with have delivered to the Exchange Paying Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a properly completed and duly executed letter of transmittal in a form and substance reasonably satisfactory to the Purchaser and the Paying Agent (which a “Letter of Transmittal”) and (ii) the Certificates held of record by such holder. Such Letter of Transmittal shall specify have been previously delivered by the Paying Agent to such holder along with instructions thereto and a notice to the effect that delivery of the Certificates shall be effected, and risk of loss and title to the Certificates shall pass, pass only upon proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificatea Certificate to the Paying Agent, together with such letter Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by consideration into which the number of Shares shares represented by such CertificateCertificate shall have been converted pursuant to Section 2.5(a), and such the Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely If the right to receive an amount equal to portion of the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall to be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration with respect to such shares is to be paid to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration exchange to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the reasonable satisfaction of the Exchange Agent Company that such tax Tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.6, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed as of the Effective Time of the Merger to represent only the right or the contingent right, as applicable, to receive, upon surrender of such Certificate in accordance with this Section 2.6(a), the portion of the Merger Consideration into which the shares of Company Stock shall have been converted pursuant to Section 2.5(a). If any Certificate shall have been lost, stolen or destroyed, the Paying Agent may, in its discretion and as a holder condition precedent to the issuance of Shares for any Merger Consideration delivered to a public official in respect thereof pursuant to applicable abandoned propertySection 2.5(a), escheat and similar lawsrequire the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit or indemnity agreement with respect to such Certificate.
(cb) Promptly following All Merger Consideration paid upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited surrender of Certificates in accordance with the Exchange Agent that remain unclaimed by holders terms of Certificates this ARTICLE II shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares represented by such Certificate, 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.
(d) After the Effective Time, Certificates and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares of the Company Stock that were issued and outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable portion of the Merger Consideration, Consideration as provided in this Article IARTICLE II.
(c) Subject to applicable Laws, at any time following the six (6) month anniversary of the Closing Date, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) that had been made available to the Paying Agent and which have not been disbursed to the Stockholders, and thereafter, such Stockholders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the payment of any Merger Consideration that would otherwise be payable upon surrender of any Certificates held by such Stockholders, as determined pursuant to this Agreement, without any interest thereon. Any amounts remaining unclaimed by such Stockholders at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable law Laws, the property of the Purchaser, free and clear of all claims or interests of any Person previously entitled thereto. Notwithstanding the foregoing, none of the Purchaser, Merger Sub or the Surviving Corporation shall be liable to any former Stockholders for any portion of the Merger Consideration or interest thereon properly delivered to a public official pursuant to any applicable abandoned property, escheat or other similar Law.
(d) The Paying Agent, the Purchaser, Merger Sub, or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from consideration otherwise payable pursuant to this Agreement to any Stockholders such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law; provided, that the Paying Agent must be provided with prior written notice of any such required withholding at least five (5) days’ prior to the date of such payment. To the extent that amounts are so withheld, (i) such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Stockholders in respect of which such deduction and withholding was made and (ii) the case Paying Agent, the Purchaser, the Company or the Surviving Corporation (as appropriate) shall provide such Stockholders written notice of Dissenting Sharesthe amounts so deducted or withheld.
(e) The applicable Stockholder Loan Amount will be deducted from the consideration paid pursuant to Section 2.5(a) to each Stockholder Loan Party, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Nordson Corp)
Exchange of Certificates. (a) From and As soon as practicable after the Effective Time, a ChaseMellon Shareholder Services, L.P. or any other bank or trust company to be designated by FKW Sub Parent and reasonably acceptable to the Company (the "Exchange Agent") shall be authorized, pursuant to an agreement satisfactory to Parent and the Company, to act as exchange agent in effecting the exchange of for the applicable Merger Consideration for of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or ) that, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary represented shares of Company Common Stock entitled to enable the Exchange Agent conversion into Class B Common Stock pursuant to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforSection 3.1 hereof. Upon the surrender of each Certificatesuch Certificate formerly representing shares of Company Common Stock, together with such letter of transmittal duly executed and completed in accordance with the instructions theretoExchange Agent shall, as promptly as practicable, distribute to the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the applicable Merger Consideration multiplied by the number of Shares shares of Company Common Stock formerly represented by such CertificateCertificate (including cash due in lieu of fractional shares that but for Section 3.1(f) above would have been issued and the cash, if any, required to be deposited with the Exchange Agent by Parent or the Purchaser pursuant to Section 2.2(v)(B), which cash shall be paid to the Shareholders by the Exchange Agent as soon as practicable after receipt from Parent or the Purchaser), less such Shareholder's pro rata contribution to the Escrow Account as determined in accordance with the provisions of Section 3.1(e) above, in exchange therefor and, in accordance with any applicable instructions from the holder thereof (subject to satisfaction of the conditions described below with respect to delivery of Merger Consideration to a person other than the person in whose name the Certificate is registered), and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or shares held by Parent or any direct or indirect subsidiary of Parent, or by the Company or any of its subsidiaries) shall represent solely the right to receive an amount equal to the applicable Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue on the 14 9 Merger Consideration or on dividends or other payments paid by Parent thereon and no dividends or other payment payable upon after the surrender Effective Time with respect to the Class B Common Stock shall be paid to the holder of any unsurrendered Certificate formerly representing Company Common Stock until the Certificatesholder thereof surrenders such Certificate as set forth in (c) below. If any the Merger Consideration (or any portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Certificate representing shares of Company Common Stock surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such the Merger Consideration to a Person 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 of Shares Company Common Stock for any Merger Consideration delivered to a public official pursuant to the extent required by applicable abandoned property, escheat and similar laws. The Exchange Agent shall be authorized to distribute Merger Consideration (including cash due upon sale of fractional shares thereof as provided in Section 3.1(f) above and cash deposited with the Exchange Agent by Parent pursuant to Section 2.2(v)(B)) for any Certificate which has been lost, stolen or destroyed upon receipt of satisfactory evidence of the ownership of the Company Common Stock formerly represented thereby and after receipt of appropriate indemnification. Without limiting the foregoing, the agreement with the Exchange Agent shall specifically provide that the execution and delivery by a Shareholder of record to the Exchange Agent of an "Affidavit of Loss and Indemnity" in substantially the form of Exhibit C hereto, along with an insurance policy providing coverage reasonably satisfactory to Parent for any loss, damage or expense that Parent, the Surviving Corporation, the Exchange Agent or their respective successors or assigns may sustain arising from the issuance of the Merger Consideration in respect of such lost, stolen or destroyed certificates, shall constitute satisfactory evidence and appropriate indemnification for such purpose.
(b) At or before the Effective Time, Parent shall irrevocably instruct the registrar and transfer agent for the Class B Common Stock to countersign and deliver to the Exchange Agent such shares of Class B Common Stock as and when required to deliver the Merger Consideration (less such shares of Class B Common Stock as shall constitute Escrow Shares pursuant to Section 3.1(e) above). Parent will, at all times from and after the Effective Time, reserve from shares held in treasury a sufficient number of shares of Class B Common Stock to provide for all transfers pursuant to this Agreement.
(c) No dividends or other distributions declared or made after the Effective Time with respect to Class B 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 Class B Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any holder pursuant to Section 3.1(f) until the holder of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, upon surrender of any such Certificate, there shall be paid to the holder of whole shares of Class B Common Stock, without interest, (i) at the time of such surrender, the amount of any cash payable with 15 10 respect to a fractional share of Class B Common Stock to which such holder is entitled pursuant to Section 3.1(f) and the amount of all dividends and distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Class B 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 Class B Common Stock.
(d) All shares of Class B Common Stock (and cash due in lieu of fractional shares as provided in Section 3.1(f)) issued upon conversion of shares of Company Common Stock in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Company Common Stock (including any dividends in arrears).
(e) Promptly after the Effective Time, but no later than three (3) business days thereafter, the Exchange Agent shall send to record holders of Certificates a transmittal form (the "Transmittal Form") reasonably satisfactory to the Company containing instructions with respect to the surrender of Certificates to be exchanged for Merger Consideration.
(f) Promptly following the date which is 180 days one year after the Effective Time, the Exchange Agent shall deliver to Parent all cash, certificates representing shares of Class B Common Stock and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate formerly representing a share of Company Common Stock may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal Parent and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the applicable Merger Consideration multiplied by the number of Shares represented by such Certificateand any other amounts payable in accordance with (c) above, without any interest thereon, but and such Certificate shall have no greater rights against the Surviving Corporation than may forthwith be accorded to general creditors of the Surviving Corporationcanceled.
(dg) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case shares of Dissenting SharesCompany Common Stock.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company The Holding Company shall appoint ------------------------ First-Citizens Bank & Trust Company to be designated by FKW Sub and reasonably acceptable to the Company act as exchange agent (the "Exchange Agent") shall act as exchange agent in effecting for the exchange Share Exchange. As of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub the Holding Company shall deposit with the Exchange Agent for the amount necessary benefit of the holders (prior to enable the Effective Time) of certificates evidencing shares of Bank Stock ("Bank Stock Certificates"), certificates representing the shares of the Holding Company Stock ("Holding Company Certificates") issuable pursuant to Section 1 in exchange for such shares of Bank Stock and the Bank shall deposit funds representing the cash value of any fractional shares (the "Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange AgentFund").
(b) Promptly after the Effective Time, the Holding Company shall cause the Exchange Agent shall to mail to each person who was a record holder holder, as of Certificates the Effective Time, of an outstanding Bank Stock Certificate, a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Bank Stock Certificates shall pass, only upon proper delivery of the Bank Stock Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each the Bank Stock Certificates in exchange for the Exchange Consideration. Upon surrender to the Exchange Agent of a Bank Stock Certificate, together with such letter of transmittal duly executed and completed in accordance with such other documents as may be reasonably required by the instructions theretoExchange Agent, the holder of such Bank Stock Certificate shall be entitled to receive in exchange therefor an amount equal to a Holding Company Certificate (and cash for any fractional shares) representing the Merger Exchange Consideration multiplied by the number of Shares represented by which such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely holder has the right to receive an amount equal pursuant to Section 1. The surrendered certificate shall be delivered to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesHolding Company. If any Merger Consideration delivery of a Holding Company Certificate is to be paid made to a Person person other than the Person person in whose name the Bank Stock Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such of the exchange and delivery that the Person Bank Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall delivery pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration delivery to a Person person other than the registered holder of the Bank Stock Certificate surrendered, surrendered or such Person shall establish to the satisfaction of the Exchange Agent Holding Company that such tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 4, each Bank Stock Certificate (other than Bank Stock Certificates representing Dissenting Shares) shall represent for all purposes only the exchange rights established pursuant to this Agreement.
(c) At any time more than one year after the Effective Time, the Holding Company shall be entitled to require the Exchange Agent to deliver to it the Holding Company Certificates which had been made available to the Exchange Agent and not exchanged for Bank Stock Certificates. Thereafter, holders of shares of Bank Stock shall look only to the Holding Company (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Exchange Consideration that may be payable upon due surrender of the Bank Stock Certificates held by them. If any Bank Stock Certificates shall not have been surrendered prior to three years after the Effective Time (or immediately prior to such time on which any Exchange Consideration would otherwise escheat or become the property of any governmental unit or agency), the Exchange Consideration in respect of such Bank Stock Certificates shall, to the extent permitted by applicable law, become the property of the Holding Company, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, neither none of the Bank, the Holding Company nor the Exchange Agent nor any party hereto shall be liable to a any holder of Shares a share of Bank Stock for any Merger Exchange Consideration delivered in respect of such share of Bank Stock to a public official pursuant to applicable any abandoned property, escheat and or other similar lawslaw.
(cd) Promptly following The Holding Company may, in its discretion, elect not to treat any unsurrendered shares of Bank Stock as shares of Holding Company Stock for purposes of the date which is 180 days after payment of dividends or other distributions. If the Effective TimeHolding Company in its discretion so elects, then unless and until any outstanding Bank Stock Certificates shall be so surrendered, no dividends payable to the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates Holding Company Stock shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of the unsurrendered Bank Stock Certificate; provided, however, upon surrender and exchange of each outstanding Bank Stock Certificate for a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Holding Company Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented paid to the Surviving Corporation or holder thereof the Exchange Agentamount, they shall be canceled without interest, of all dividends and exchanged for the applicable Merger Considerationother distributions, as provided in this Article Iif any, subject which were declared and became payable, but were not paid, with respect to applicable law in the case of Dissenting Sharessaid shares.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Share Exchange (Waccamaw Bankshares Inc)
Exchange of Certificates. (a) From Upon surrender of its original Certificates (other than Certificates representing Dissenting Shares) or an affidavit as set forth in Section 2.11(c) hereof, together with a duly executed and after completed letter of transmittal in the Effective Timeform attached as Exhibit D hereto (a “Letter of Transmittal”) in accordance with this Section 2.11, a bank or trust company the holder of each Certificate shall have the right to be designated by FKW Sub and reasonably acceptable to receive from the Surviving Corporation in exchange for each share of Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.Stock formerly evidenced thereby:
(bi) in exchange for each share of Series A Preferred Stock, the Per Share Series A Preferred Stock Consideration;
(ii) in exchange for each share of Series B Preferred Stock, the Per Share Series B Preferred Stock Consideration;
(iii) in exchange for each share of Series C Preferred Stock, the Per Share Series C Preferred Preference and the Estimated Per Share Series C Preferred Participation;
(iv) in exchange for each share of Series D Preferred Stock, the Per Share Series D Preferred Stock Consideration; and
(v) in exchange for each share of Common Stock, the Estimated Per Share Common Stock Closing Consideration. Promptly after the Effective Time, the Exchange Agent Surviving Corporation shall mail or otherwise deliver to each record holder of Certificates (other than Certificates representing Dissenting Shares) a letter Letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title Transmittal for return to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) Surviving Corporation and instructions for use in surrendering effecting the surrender of the Certificates and receiving the Merger Consideration payment therefor. Upon surrender to the surrender Surviving Corporation of each Certificateits original Certificates (other than Certificates representing Dissenting Shares), together with such letter of transmittal duly executed and completed in accordance with the instructions theretoLetter of Transmittal, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely receive from the right Surviving Corporation immediately thereafter in exchange therefor, the applicable consideration specified in Section 2.11(a)(i)-(v) above. Each such Certificate so surrendered shall be canceled, provided that notwithstanding the cancellation of such Certificate, the former holder thereof shall remain entitled to receive an the amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesset forth herein. If any Merger Consideration payment or delivery is to be paid made to a Person other than the Person in whose name the a Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on the certificate or any related stock power shall be properly guaranteed and that the Person requesting such exchange shall payment either pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, so surrendered or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax Tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 2.11, each Certificate (other than Certificates canceled pursuant to Section 2.8(f) and Certificates representing Dissenting Shares) shall represent for all purposes only the right to receive (i) the Per Share Series A Preferred Stock Consideration, (ii) the Per Share Series B Preferred Stock Consideration, (iii) the Per Share Series C Preferred Preference, the Per Share Series C Preferred Participation and Per Share Holdback Amount (Series C Preferred), (iv) the Per Share Series D Preferred Stock Consideration or (v) the Per Share Common Stock Closing Consideration and the Per Share Holdback Amount (Common), as applicable.
(b) Notwithstanding the foregoing, neither any record holder of Company Stock that has delivered copies of its original Certificates or an affidavit as set forth in Section 2.11(c) hereof together with a duly executed and completed Letter of Transmittal to Parent in accordance with this Section 2.11 and the Exchange Agent nor any party hereto Letter of Transmittal (including valid wire transfer instructions), in each case, at least one (1) Business Day prior to the Closing Date (the originals of which Certificates or affidavit are delivered to Parent on the Closing Date), shall be liable entitled to a holder payment by wire transfer on the Closing Date of Shares the applicable consideration specified in Section 2.11(a)(i)-(iv) above in accordance with the instructions specified in such Person’s Letter of Transmittal. No interest will be paid or will accrue for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsthe benefit of the holders of the Certificates on the consideration payable following the surrender of the Certificates.
(c) Promptly following In the event that any Certificate (other than any Certificate representing Dissenting Shares) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the registered holder of such lost, stolen or destroyed Certificate in form and substance reasonably acceptable to Parent and Newco (if such affidavit is accepted before the Effective Time) or the Surviving Corporation (if such affidavit is accepted after the Effective Time), the Surviving Corporation will issue in exchange for such lost, stolen or destroyed Certificate the applicable form of consideration in respect thereof in the manner set forth in Sections 2.10 and 2.11.
(d) If Certificates are not surrendered prior to the date which that is 180 days two (2) years after the Effective Time, unclaimed amounts (including interest thereon) of such consideration shall, to the Exchange Agent's duties shall terminateextent permitted by applicable law, become the property of the Surviving Corporation and any funds deposited may be commingled with the Exchange Agent that remain unclaimed by holders general funds of Certificates the Surviving Corporation. Notwithstanding the foregoing, any Former Securities Holders of the Company who have not theretofore complied with the provisions of this Section 2.11 shall be paid thereafter look only to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to only as general creditors of thereof for payment for their claims in the Surviving Corporationform and amounts to which such stockholders are entitled.
(de) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares of Company Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates (other than Certificates representing Dissenting Shares) are presented to the Surviving Corporation or the Exchange Agentfor transfer, they shall be canceled and exchanged for the applicable Merger Consideration, consideration as provided for, and in accordance with, the provisions, of this Article I, subject to applicable law in the case of Dissenting SharesAgreement.
Appears in 1 contract
Exchange of Certificates. (a) From and 2.8.1 At or after the Effective Time, a bank upon receipt of and in exchange for each certificate or trust company to be designated by FKW Sub and reasonably acceptable certificates which immediately prior to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange Effective Time represented shares of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 Common Stock (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive as of the dates set forth in Section 2.7.3 in exchange therefor an the amount equal to the of Merger Consideration multiplied by which the number shares of Shares Common Stock (also referred to herein as the "Shares") theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 2.7, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely In the right to receive an amount equal to the Merger Consideration multiplied by the number event of a transfer of ownership of Shares represented by such Certificate. No interest shall be paid or accrue on that is not registered in the Merger Consideration payable upon the surrender transfer records of the Certificates. If any Merger Consideration is to Company, payment may be paid made to a Person person other than the Person person in whose name the Certificate so surrendered in exchange therefor is registered, if such Certificate shall be accompanied by all documents required to evidence properly endorsed or otherwise be in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.9.1, neither the Exchange Agent nor any party hereto each Certificate shall be liable to a holder of Shares for deemed at any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days time after the Effective TimeTime to represent only the right to receive upon such surrender the amount of Merger Consideration, without interest, into which the Exchange Agent's duties Shares theretofore represented by such Certificate shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall have been converted pursuant to Section 2.7 hereof. No interest will be paid or will accrue on the cash payable upon the surrender of any Certificate. In the event any Certificate shall have been lost, stolen or destroyed, Buyer may, in its discretion and as a condition precedent to the Surviving Corporation upon demand. Thereafter, each holder payment of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by in respect of the number of Shares represented by such Certificate, without require the owner of such lost, stolen or destroyed Certificate to deliver a bond in such sum and in such form as it may reasonably direct and from such issuer as it may reasonably approve of, as indemnity against any interest thereon, but shall have no greater rights against the Surviving Corporation than claim that may be accorded to general creditors of made against Buyer or the Surviving Corporation.
(d) After 2.8.2 All Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Section 2.8 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares theretofore represented by such Certificates. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesSection 2.8.
Appears in 1 contract
Exchange of Certificates. (a) From and As soon as reasonably practicable after the Effective Time, a bank each holder of an outstanding certificate or trust company to be designated by FKW Sub and reasonably acceptable certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Company Exchange Agent of such certificate(s) and acceptance thereof by the Exchange Agent (together with the "letter of transmittal described in Section 2.2(b), duly executed, and such other documents as may reasonably be required by the Exchange Agent") shall act as exchange agent in effecting ), be entitled to receive the exchange amount of the Merger Consideration for certificates representing Shares entitled to payment into which the number of shares of Company Common Stock previously represented by such certificate(s) so surrendered shall have been converted pursuant to Section 1.6 (the "Certificates")this Agreement. At or prior to After the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify that delivery there shall be effected, and risk of loss and title to no further transfer on the Certificates shall pass, only upon proper delivery records of the Certificates Company or its transfer agent of certificates representing shares of Company Common Stock which have been converted pursuant to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely this Agreement into the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by Consideration, and if such Certificate. No interest certificates are presented for transfer, they shall be paid or accrue on cancelled against delivery of the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration is to be paid delivered to a Person any person other than the Person person in whose name the Certificate certificate(s) representing shares of Company Common Stock surrendered in for exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange that the Person certificate(s) so surrendered shall be properly endorsed with the signature guaranteed or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrenderedthereof, or such Person shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.2(a), neither the Exchange Agent nor any party hereto shall be liable each certificate which, prior to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, represented outstanding shares of Company Common Stock (other than shares cancelled pursuant to Section 1.8(b) and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates Dissenting Shares) shall be paid deemed at any time after the Effective Time to represent only the Surviving Corporation right to receive upon demand. Thereafter, each holder of a Certificate may such surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number in accordance with Section 1.8. No interest will be paid or will accrue on any cash payable as Merger Consideration to any holder of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors shares of the Surviving CorporationCompany Common Stock.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after Promptly upon the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange surrender of the Merger Consideration for certificates any certificate representing Common Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time2.1, FKW Sub Parent shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to certificate the Merger Consideration multiplied by the number of Common Shares formerly represented by such Certificatecertificate, in exchange therefor, and such Certificate Share certificate shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate certificate (other than certificates representing Dissenting Shares or shares held by Parent, Acquisition or Holdings, or any direct or indirect subsidiary thereof) shall represent solely the right to receive an amount equal to the Merger Consideration. If the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid (or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration portion thereof) is to be paid to a Person person other than the Person holder in whose name the Certificate certificate representing Common Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange that the Person certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent Parent any transfer or other taxes Taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate Common Shares formerly represented by the certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent Parent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered pursuant hereto to a public official pursuant to applicable abandoned property, escheat and similar property laws.
(cb) Promptly following the date which is 180 days six months after the Effective Time, the Exchange Agent's duties Parent shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid return to the Surviving Corporation upon demandEntity all cash, certificates and other instruments in its possession relating to the transactions described in this Agreement, and Parent's duties under this Section 2.3 shall terminate. Thereafter, each holder of a Certificate certificate formerly representing a Common Share may surrender such Certificate certificate to the Surviving Corporation along with the applicable letter of transmittal Entity and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereon, but shall have no greater rights against the Surviving Corporation Entity than may be accorded to general creditors of the Surviving CorporationEntity under Delaware law.
(c) The right of any holder of a certificate representing Common Shares to receive the Merger Consideration shall be subject to and reduced by the amount of any required Tax withholding obligation.
(d) Promptly after the Effective Time, Parent shall mail or deliver to each record holder of certificates which immediately prior to the Effective Time represented Common Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving the Merger Consideration in exchange therefor.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation Entity of any Common Shares. If, after the Effective Time, Certificates certificates previously representing Common Shares are presented to the Surviving Corporation Entity or the Exchange AgentParent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
(f) Notwithstanding any other provision in this Section 2.3 to the contrary, Parent shall cause the Merger Consideration to be paid in immediately available funds on the date of the Effective Time with respect to any certificates representing Common Shares which are surrendered to Parent prior to or at the Effective Time, and Parent will not be required to comply with Section 2.3(d) with respect to such Shares.
Appears in 1 contract
Exchange of Certificates. (a) From Section 3.2.1 Exchange Procedures and after Payment of Merger Consideration. At the Effective Time, Parent shall make available to each holder of record of a bank certificate or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or which immediately prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
Time represented outstanding shares of Class A Preferred Stock or Company Common Stock (b) Promptly after the Effective Timecollectively, the Exchange Agent shall mail to each record holder of Certificates “Certificates”) (A) 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 proper delivery of the Certificates to the Exchange AgentParent and shall be in customary form) and (B) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the Class A Preferred Merger Consideration or Common Merger Consideration, as the case may be. At the Effective Time, upon surrender of a Certificate for cancellation to Parent together with such letter of transmittal transmittal, properly completed and duly executed executed, and completed in accordance with the instructions theretosuch other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by applicable Closing Payment Per Share that such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely holder has the right to receive an amount equal to in respect of the Merger Consideration multiplied by the number shares of Shares Class A Preferred Stock or Company Common Stock formerly represented by such CertificateCertificate plus, in the case of any holder of Company Common Stock, the right to receive his, her or its pro rata portion of the Escrowed Funds upon the terms and subject to the conditions set forth in the Escrow Agreement, and the Certificate so surrendered shall forthwith be canceled. No interest The “Closing Payment Per Share” for the Class A Preferred Stock shall equal the Class A Preferred Merger Consideration Per Share. The “Closing Payment Per Share” for the Company Common Stock shall equal the quotient of (1) the sum of (a) the Common Merger Consideration (assuming for this purpose only that the Working Capital Adjustment is zero, provided that any actual Working Capital Adjustment shall be paid or accrue on made in accordance with the Merger Consideration payable upon provisions of Section 3.7.5) less (b) the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence Escrow Amount and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
less (c) Promptly following the date which is 180 days after Stockholder Representative Holdback divided by (2) the Number of Fully Diluted Shares, provided that the aggregate Common Merger Consideration otherwise payable to ▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇ under this Article 3 shall be reduced as set forth in Section 3.1.7. The portion of the Common Merger Consideration not paid at the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder surrender of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable Certificate, letter of transmittal and such other documents (i.e., the portion of the Common Merger Consideration represented by the Escrowed Funds) shall be disbursed to the Stockholders upon the terms and subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law conditions set forth in the case of Dissenting SharesEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Guitar Center Inc)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and As soon as reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly practicable after the Effective Time, the Exchange Paying Agent shall mail to each record holder of Certificates record of a Certificate and, if applicable, each holder of Book-Entry Shares immediately prior to the Effective Time whose shares of Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.1 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 proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the Merger Consideration. Upon proper surrender of a Certificate for exchange and cancellation to the Paying Agent, together with such a letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by in respect of the number shares of Shares Common Stock formerly represented by such Certificate, Certificate and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateforthwith be cancelled. No interest shall will be paid or accrue accrued for the benefit of holders of the Certificates on the Merger Consideration payable upon the surrender of the Certificates.
(b) As soon as reasonably practicable after the Effective Time, or, if applicable, receipt by the Paying Agent of a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the Paying Agent shall issue and deliver to each holder of Book-Entry Shares a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 2.1 of this Agreement in respect of such Book-Entry Shares, without such holder being required to deliver a Certificate to the Paying Agent, and such Book-Entry Shares shall then be canceled. No interest will be paid or accrued for the benefit of holders of Book-Entry Shares on the Merger Consideration payable in respect of such Book-Entry Shares.
(c) If any the payment of the Merger Consideration is to be paid made to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the Certificate surrenderedsurrendered in exchange therefor or the registered holder of Book-Entry Shares, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer or such Person Book-Entry Shares shall be properly transferred, and that the person requesting such payment shall pay to the Paying Agent in advance any applicable stock transfer or other Taxes or shall establish to the reasonable satisfaction of the Exchange Paying Agent that such tax has Taxes have been paid or is are not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationpayable.
(d) After At and after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation Company of any Sharesthe shares of Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates representing such shares are presented for transfer to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article IIII.
(e) Any portion of the property deposited with the Paying Agent pursuant to Section 3.1 (including interest thereon) that remains unclaimed by the stockholders of the Company for six (6) months after the Effective Time shall be paid, subject at the request of Parent, to or as directed by Parent. Any stockholders of the Company who have not theretofore complied with this Article III shall thereafter look only to Parent for payment of the Merger Consideration in respect of each share of Common Stock held by such stockholder at the Effective Time as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding anything to the contrary contained herein, none of Parent, the Company, the Paying Agent or any other person shall be liable to any former holder of shares of Common Stock for any amount properly delivered to a public official pursuant to applicable law abandoned property, escheat or similar Laws.
(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, the posting by such person of a bond in such amount as Parent or one of its Subsidiaries may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the case of Dissenting SharesPaying 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
Exchange of Certificates. (a) From and after Prior to receiving any Merger Consideration, each holder of record of a certificate or certificates that immediately prior to the Effective Time, a bank or trust company to be designated by FKW Sub Time represented issued and reasonably acceptable to outstanding shares of capital stock of the Company (the "Exchange Agent"“Certificates”) shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior have delivered to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
Purchaser or its agent (bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a properly completed and duly executed letter of transmittal transmittal, in substantially the form attached hereto as Exhibit C (which shall specify that delivery shall be effected, a “Letter of Transmittal”) and risk of loss and title to (ii) the Certificates shall pass, only upon proper delivery held of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented record by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesholder. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration exchange to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the reasonable satisfaction of the Exchange Agent Purchaser that such tax Tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 3.7, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed as of the Effective Time to a holder represent only the right to receive, upon surrender of Shares for any such Certificate in accordance with this Section 3.7(a), the portion of the Merger Consideration delivered to a public official Consideration, if any, into which the shares represented by such Certificate shall have been converted pursuant to applicable abandoned property, escheat and similar lawsSection 3.7.
(cb) Promptly following All Merger Consideration paid or payable upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited surrender of Certificates in accordance with the Exchange Agent that remain unclaimed by holders terms of Certificates this Article III shall be deemed to have been paid or payable in full satisfaction of all rights pertaining to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares represented by such CertificateCertificates, 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.
(d) After the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable portion of the Merger Consideration, if any, payable pursuant to this Agreement as provided in this Article IIII.
(c) None of the Purchaser, subject Merger Sub or the Surviving Corporation shall be liable to any former Stockholder or Optionholder for any portion of the Merger Consideration or interest thereon properly delivered to a public official pursuant to any applicable law in the case of Dissenting Sharesabandoned property, escheat or similar Law.
Appears in 1 contract
Sources: Merger Agreement (PRGX Global, Inc.)
Exchange of Certificates. (a) From and after Prior the Effective TimeDate, Parent shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent (the "EXCHANGE AGENT") in effecting the exchange of for the Merger Consideration for of stock certificates representing (the "CERTIFICATES") which, prior to the Effective Date, represented Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor2.5. Upon the surrender for cancellation to the Exchange Agent of each Certificatesuch Certificates, together with such a letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretothereon, and any other items specified in the letter of transmittal, the holder of such Certificate Exchange Agent shall be promptly pay to the Person entitled to receive in exchange therefor an amount equal to thereto the Merger Consideration multiplied by the number of Shares represented by such Certificate, deliverable in respect thereto and such Certificate Certificates shall be canceled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Shares to be canceled pursuant to Section 2.5(b) and Shares held by Dissenting Stockholders) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration cash is to be paid to a Person other than the Person in whose name which the Certificate representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange payment that the Certificates so surrendered shall be properly endorsed or accompanied by appropriate stock powers and otherwise in proper form for transfer, that such transfer otherwise be proper and that the Person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration cash to a Person 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 foregoinganything in this Agreement, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned propertyproperty laws. In the event any Certificate shall have been lost, escheat and similar lawsstolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issuein exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article 2, provided that, the Person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation a bond in such amount as it may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to it against any claim that may be made against the Surviving Corporation with respect to the Certificate claimed to have been lost, stolen or destroyed.
(cb) Promptly following the date which is 180 days six months after the Effective TimeDate, the Exchange Agent shall return to the Surviving Corporation all cash and property in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate representing a Share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving CorporationCorporation under applicable law.
(dc) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, Promptly after the Effective TimeDate, Parent shall cause the Exchange Agent to mail or make available to each record holder of Certificates are presented which immediately prior to the Surviving Corporation or Effective Date represented Shares (other than Shares to be canceled pursuant to Section 2.5(b)) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificate shall pass, only upon proper delivery of the Certificates to the Exchange Agent, they shall be canceled ) and exchanged instructions for use in surrendering such Certificates and receiving the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesConsideration therefor.
Appears in 1 contract
Sources: Merger Agreement (Childrens Discovery Centers of America Inc)
Exchange of Certificates. (a) From and after With respect to any certificate or certificates, which immediately prior to the Effective Time, a bank Time represented outstanding shares of Company Common Stock or trust company to be designated Class C Stock (other than Dissenting Shares and shares held by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent"Company) shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates")) and are delivered at the Closing, the Surviving Corporation will, with respect to Certificates representing shares of Company Common Stock, pay by check or by wire transfer immediately after the Effective Time the Cash Merger Consideration per share to the holder thereof and, with respect to Certificates representing shares of Class C Stock, deliver the Class C Merger Consideration per share. At or prior With respect to any Certificates not delivered at the Closing, the Surviving Corporation will promptly, and in any event not later than one business day following the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary mail (and to enable the Exchange Agent to exchange the Merger Consideration make available for Certificates received collection by the Exchange Agent.
(bhand) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of such Certificate, (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 proper delivery of the Certificates to the Exchange AgentSurviving Corporation and shall be in such form and have such other provisions as MergerCo and the Company may reasonably specify) and (ii) instructions for use in surrendering effecting the surrender of the Certificates and receiving in exchange for the Merger Consideration therefor(which shall provide that at the election of the surrendering holder, Certificates may be surrendered, and payment therefor collected, by hand delivery). Upon the surrender of each Certificatea Certificate for cancellation to the Surviving Corporation or to such other agent or agents as may be appointed by the Surviving Corporation, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number for each share of Shares Company Common Stock formerly represented by such Certificate, with the Cash Merger Consideration or the Class C Merger Consideration (as the case may be) to be mailed (or made available for collection by hand if so elected by the surrendering holder) within three business days of receipt thereof, and such the Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateforthwith be cancelled. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender If payment of the Certificates. If any Merger Consideration is to be paid made to a Person person other than the Person person in whose name the surrendered Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer. Until surrendered as contemplated by this Section 2.02, each Certificate (other than Certificates representing Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration as contemplated by this Section 2.02.
(b) 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, the Surviving Corporation will issue in exchange for such lost, stolen or destroyed Certificate the Cash Merger Consideration or the Class C Merger Consideration (as the case may be) deliverable in respect thereof as determined in accordance with this Article II, provided that the Person requesting such exchange shall pay (as defined below) to whom the Cash Merger Consideration or the Class C Merger Consideration (as the case may be) is paid shall, as a condition precedent to the Exchange Agent payment thereof, indemnify the Surviving Corporation in a manner satisfactory to it against any transfer or other taxes required by reason of claim that may be made against the payment of such Merger Consideration Surviving Corporation with respect to a Person other than the registered holder of the Certificate surrenderedclaimed to have been lost, stolen 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsdestroyed.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesshares of Company Common Stock or Class C Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentCorporation, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article III.
(d) None of MergerCo, the Company, the Surviving Corporation, or any other person shall be liable to any former holder of shares of Company Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(e) Any payment made pursuant to this Section 2.02 shall be subject to and made net of applicable law in the case of Dissenting Shareswithholding taxes.
Appears in 1 contract
Exchange of Certificates. (a) From Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent for the holders of the Shares in connection with the Merger (the "Paying Agent") to receive in trust the funds to which holders of the Shares shall become entitled pursuant to the Merger. Such funds shall be delivered by the Parent to the Paying Agent on the Closing Date and prior to the Effective Time and shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided that such investments shall be short-term obligations of, or backed by the full faith and credit of, the United States and shall provide sufficient liquidity to pay the Merger Consideration to the holders of the Shares in accordance with this agreement.
(b) As soon as reasonably practicable after the Effective Time, the Paying Agent shall mail to each holder of record of a bank certificate or trust company to be designated by FKW Sub and reasonably acceptable certificates, which immediately prior to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Effective Time represented outstanding Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior , whose Shares were converted upon the Merger into the right to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange receive the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange AgentPaying Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify prior to the Effective Time) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed prior to the Effective Time by Parent, subject to the approval of the Company, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive forthwith in exchange therefor an amount equal to the Merger Consideration multiplied for each Share formerly represented by the number of Shares represented by such Certificate, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender If payment of the Certificates. If any Merger Consideration is to be paid made to a Person person other than the Person person in whose name the surrendered Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Person Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such exchange payment shall pay to the Exchange Agent have paid any transfer or and other taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, surrendered or such Person shall establish have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax either has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 1.7, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed at any time after the Effective Time to a holder of Shares for any represent only the right to receive the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsin cash as contemplated by this Section 1.7.
(c) Promptly following At the date which is 180 days Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of the Shares on the records of the Company. From and after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid evidencing ownership of the Shares outstanding immediately prior to the Surviving Corporation upon demand. ThereafterEffective Time shall cease to have any rights with respect to those Shares, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the except as otherwise provided for herein or by applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shareslaw. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable Merger Consideration, cash as provided in this Article II.
(d) At any time following one year after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which had been made available to the Paying Agent and which have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of a Certificate for Merger Consideration delivered to a public official pursuant to any applicable law in the case of Dissenting Sharesabandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) From and after The Holding Company shall appoint First-Citizens Bank & Trust Company to act as exchange agent (the “Exchange Agent”) for the Share Exchange. As of the Effective Time, a bank the Holding Company shall deposit, or trust company shall cause to be designated by FKW Sub and reasonably acceptable to deposited, with the Company (the "Exchange Agent") shall act as exchange agent in effecting , for the exchange benefit of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 holders (the "Certificates"). At or prior to the Effective Time) of certificates evidencing shares of Bank Stock (“Bank Stock Certificates”), FKW Sub shall deposit with certificates representing the shares of the Holding Company Stock (“Holding Company Certificates”) issuable pursuant to Section 1 in exchange for such shares of Bank Stock (such Holding Company Certificates, the “Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange AgentFund”).
(b) Promptly after the Effective Time, the Holding Company shall cause the Exchange Agent shall to mail to each person who was a record holder holder, as of Certificates the Effective Time, of a Bank Stock Certificate, a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Bank Stock Certificates shall pass, only upon proper delivery of the Bank Stock Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each the Bank Stock Certificates in exchange for the Exchange Consideration. Upon surrender to the Exchange Agent of a Bank Stock Certificate, together with such letter of transmittal duly executed and completed in accordance with such other documents as may be reasonably required by the instructions theretoExchange Agent, the holder of such Bank Stock Certificate shall be entitled to receive in exchange therefor an amount equal to a Holding Company Certificate representing the Merger Exchange Consideration multiplied by the number of Shares represented by that such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely holder has the right to receive an amount equal in respect of the Bank Stock Certificate surrendered pursuant to Section 1, and the surrendered certificate shall be delivered to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesHolding Company. If any Merger Consideration delivery of a Holding Company Certificate is to be paid made to a Person person other than the Person person in whose name the Bank Stock Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such of the exchange and delivery that the Person Bank Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall delivery pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration delivery to a Person person other than the registered holder of the Bank Stock Certificate surrendered, surrendered or such Person shall establish to the satisfaction of the Exchange Agent Holding Company that such tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 4, each Bank Stock Certificate (other than Bank Stock Certificates representing Dissenting Shares) shall represent for all purposes only the exchange rights established pursuant to this Agreement.
(c) At any time more than one year after the Effective Time, the Holding Company shall be entitled to require the Exchange Agent to deliver to it the Holding Company Certificates that had been made available to the Exchange Agent and not exchanged for Bank Stock Certificates. Thereafter, holders of shares of Bank Stock shall look only to the Holding Company (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Exchange Consideration that may be payable upon due surrender of the Bank Stock Certificates held by them. If any Bank Stock Certificates shall not have been surrendered prior to three years after the Effective Time (or immediately prior to such time on which any Exchange Consideration would otherwise escheat or become the property of any governmental unit or agency), the Exchange Consideration in respect of such Bank Stock Certificates shall, to the extent permitted by applicable law, become the property of the Holding Company, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, neither none of the Bank, the Holding Company or the Exchange Agent nor any party hereto shall be liable to a any holder of Shares a share of Bank Stock for any Merger Exchange Consideration delivered in respect of such share of Bank Stock to a public official pursuant to applicable any abandoned property, escheat and or other similar lawslaw.
(cd) Promptly following The Holding Company may in its discretion elect not to treat any unsurrendered shares of Bank Stock as shares of Holding Company Stock for purposes of the date which is 180 days after payment of dividends or other distributions. If the Effective TimeHolding Company in its discretion so elects, then unless and until any outstanding Bank Stock Certificates shall be so surrendered, no dividends payable to the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates Holding Company Stock shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of the unsurrendered Bank Stock Certificate; provided, however, upon surrender and exchange of each outstanding Bank Stock Certificate for a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Holding Company Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented paid to the Surviving Corporation or holder thereof the Exchange Agentamount, they shall be canceled without interest, of all dividends and exchanged for the applicable Merger Considerationother distributions, as provided in this Article Iif any, subject which theretofore were declared and became payable, but were not paid, with respect to applicable law in the case of Dissenting Sharessaid shares.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Share Exchange (TSB Financial CORP)
Exchange of Certificates. (a) From Buyer designates Nevada Agency and Trust Company to act as transfer agent in the Merger (the "TRANSFER AGENT"), and, from time to time on, prior to or after the Effective Time, a bank or trust company to be designated by FKW Sub Buyer shall make available securities in amounts and reasonably acceptable to at the Company (times necessary for the "Exchange Agent") shall act as exchange agent in effecting the exchange payment of the Merger Consideration for upon surrender of certificates representing Shares entitled to payment the shares of Company Common Stock (collectively the "SHARES") converted into Merger Consideration pursuant to Section 1.6 1.07.
(the "Certificates"). b) At or prior to the Effective Time, FKW Sub Buyer shall deposit with instruct each holder of record of a certificate or certificates which immediately prior to the Exchange Effective Time represented Shares (the "CERTIFICATES") as to the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to Buyer or to such other agent or agents as may be appointed by Buyer, (i) Buyer shall issue an irrevocable letter to the Transfer Agent the amount necessary instructing it to enable the Exchange Agent to exchange issue the Merger Consideration for Certificates received required by the Exchange Agent.
(b) Promptly after the Effective Timethis Agreement, the Exchange Agent shall mail to each record holder of Certificates a which letter of transmittal (which shall specify that delivery shall be effectedin the form attached hereto as Exhibit J, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agentand(ii) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an the amount equal to the of Merger Consideration multiplied by which the number of Shares theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 1.07, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely In the right to receive an amount equal to the Merger Consideration multiplied by the number event of a transfer of ownership of Shares represented by such Certificate. No interest shall be paid or accrue on that is not registered in the Merger Consideration payable upon the surrender transfer records of the Certificates. If any Merger Consideration is to Company, payment may be paid made to a Person person other than the Person person in whose name the Certificate so surrendered in exchange therefor is registered, if such Certificate shall be accompanied by all documents required to evidence properly endorsed or otherwise be in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 1.08, neither the Exchange Agent nor any party hereto each Certificate shall be liable to a holder of Shares for deemed at any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days time after the Effective TimeTime to represent only the right to receive upon such surrender the amount of Merger Consideration into which the Shares theretofore represented by such Certificate shall have been converted pursuant to Section 1.07 hereof. In the event any Certificate shall have been lost, the Exchange Agent's duties shall terminatestolen or destroyed, Buyer may, in its discretion and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid as a condition precedent to the Surviving Corporation upon demand. Thereafter, each holder payment of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by in respect of the number of Shares represented by such Certificate, without require the owner of such lost, stolen or destroyed Certificate to deliver a bond in such sum as it may reasonably direct as indemnity against any interest thereonclaim that may be made against Buyer, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of or the Surviving CorporationTransfer Agent.
(dc) After All Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Section 1.08 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares theretofore represented by such Certificates. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe Shares that were outstanding immediately prior o the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentTransfer Agent for any reason, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesSection 1.08.
Appears in 1 contract
Exchange of Certificates. (a) From and Promptly after the Effective Date, Parent shall make available to each record holder who, as of the Effective Time, was a bank holder of an outstanding certificate or trust company to be designated by FKW Sub and reasonably acceptable certificates which immediately prior to the Effective Time represented Company Shares (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the Certificate" or "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each the Certificates for payment therefor and conversion thereof. Upon surrender to Parent of a Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal (i) one or more certificates as requested by the holder (properly issued, executed and countersigned, as appropriate) representing that number of whole shares of fully paid and nonassessable shares of Parent Common Stock to which such holder of Company Shares shall have become entitled pursuant to the Merger Consideration multiplied by provisions hereof, (ii) as to any fractional share of Parent Common Stock, a check representing the number of Shares represented by cash consideration to which such Certificateholder shall have become entitled pursuant hereto, and (iii) any dividend or other distribution to which such holder is entitled pursuant hereto, and the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall will be paid or accrue accrued on the Merger Consideration cash payable upon the surrender of the Certificates. If any Merger Consideration portion of the consideration to be received upon exchange of a Certificate (whether a certificate representing shares of Parent Common Stock or by check representing cash for a fractional share) is to be issued or paid to a Person person other than the Person person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange issuance and payment that the Person Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other taxes required by reason of the payment issuance of a Certificate or a check representing cash for a fractional share to such Merger Consideration to a Person other than the registered holder of the Certificate surrenderedperson, or such Person shall establish established to the satisfaction of the Exchange Agent Parent that such tax has been paid or that such tax is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after From the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited Time until surrender in accordance with the Exchange Agent that remain unclaimed by holders provisions of Certificates shall be paid to the Surviving Corporation upon demand. Thereafterthis Section 3.2, each holder of a Certificate may surrender such Certificate shall represent for all purposes only the right to receive the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as consideration provided in this Article I, subject Agreement of Merger. All payments of respective shares of Parent Common Stock that are made upon surrender of Certificates in accordance with the terms hereof shall be deemed to applicable law have been made in full satisfaction of rights pertaining to the case of Dissenting SharesCompany Shares evidenced by such Certificates.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent shall act as exchange agent (the "Exchange Agent") shall act as exchange agent in -------------- effecting the exchange of the Merger Consideration Price for certificates representing which prior to the Effective Time represented Shares entitled and which as of the Effective Time represent the right to payment pursuant to Section 1.6 receive the Merger Price (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the ------------ Effective Time, the Exchange Agent shall mail to each record holder of Certificates 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration thereforPrice therefor in a form approved by Parent and the Company. At or prior to the Effective Time, the Purchaser shall deposit in trust with the Exchange Agent immediately available funds in an amount sufficient to pay the Merger Price for all such Shares to the Company's stockholders as contemplated by this Section 2.3. 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 canceled. Until so surrendered and exchanged, each Certificate shall represent solely the right to receive the Merger Price for the Shares represented thereby, without any interest thereon. Upon the surrender and exchange of such an outstanding Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate thereof shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration Price multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No without any interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesthereon. If any Merger Consideration cash is to be paid to a Person name other than the Person that in whose name which the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person 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 Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrendered, or such Person 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 of Shares Certificates for any part of the Merger Consideration delivered Price payments made to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cb) Promptly following the date which is 180 days after first anniversary of the Effective Time, the Exchange Agent shall return to the Surviving Corporation all cash relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by Price for such CertificateShares, 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.
(d) After Corporation under applicable law. At and after the Effective Time, 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 to perfect their right of appraisal with respect to their Shares pursuant to the applicable provisions of the DGCL and Section 1.4 below, and there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented Shares that were outstanding immediately prior to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesMerger.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp /De/)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent (the "Exchange Paying Agent") shall act as exchange agent in effecting the exchange of for the Merger Consideration for of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or ) that, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforrepresented Shares. Upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such a properly completed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Paying Agent promptly shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares formerly represented by such Certificate, in exchange therefor, and such Certificate shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Acquisition or the Company, or any direct or indirect subsidiary thereof) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration (or any portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable. Notwithstanding .
(b) At Closing, Parent or Acquisition shall have deposited, or caused to be deposited, in trust with the foregoing, neither Paying Agent the Exchange Agent nor any party hereto Merger Consideration to which holders of Shares shall be liable to a holder of Shares for any Merger Consideration delivered to a public official entitled at the Effective Time pursuant to applicable abandoned property, escheat and similar lawsSection 1.7(a) hereof.
(c) The Merger Consideration shall be invested by the Paying Agent, as directed by Parent, provided such investments shall be limited to direct obligations of the United States of America, 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, commercial paper rated of the highest quality by Mood▇'▇ ▇▇▇estors Services, Inc. or Standard & Poor's Corporation or certificates of deposit issued as to all principal and interest by federal deposit insurance issued by a commercial bank having at least $100,000,000 in assets.
(d) Promptly following the date which is 180 days six months after the Effective Time, the Exchange Paying Agent shall deliver to Parent all cash and documents in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate formerly representing a Share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, 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.
(de) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of Certificates that immediately prior to the Effective Time represented Shares a form of letter of transmittal and instructions for use in surrendering such Certificates and receiving the Merger Consideration in exchange therefor.
(f) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after Prior to the Effective Time, Acquiror shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall to act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares shares of Company Common Stock entitled to payment pursuant to Section 1.6 section 2.01 (the "Certificates"). At or Immediately prior to the Effective Time, FKW Sub Acquiror shall deposit with the Exchange Agent an amount equal to the amount necessary to enable aggregate Merger Consideration (assuming there are no Dissenting Shares). The deposit will consist of cash sufficient in the aggregate for the Exchange Agent to exchange make full payment of the Merger Consideration to the holders of all of the outstanding shares of Company Common Stock. The Exchange Agent shall hold such sums in escrow for Certificates received by the Exchange Agentpurposes set forth in section 2.01(b).
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the applicable Merger Consideration therefor. The form of the transmittal letter shall have been prepared by Acquiror, subject to the approval of the Company, prior to the Effective Time. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the applicable Merger Consideration multiplied by the number of Shares shares of Company Common Stock represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares shares of Company Common Stock represented by such Certificate. No interest shall be paid or accrue accrued on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person person other than the Person person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person person requesting such exchange shall pay to the Exchange Agent any transfer or other similar taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, or such Person 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 of Shares shares of Company Common Stock for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, terminate and any funds deposited with portion of the Exchange Agent that remain unclaimed by holders of Certificates fund not disbursed pursuant to section 2.01(b) shall be paid released to the Surviving Corporation upon demandCorporation. Thereafter, each holder of a Certificate may surrender such Certificate Certificates to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares of Company Common Stock represented by such Certificate, 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.. 3 7
(d) After the Effective Time, Time there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesshares of Company Common Stock. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Merger Agreement (Rexworks Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Parent shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as paying agent (the "Exchange AgentPAYING AGENT") shall act as exchange agent in effecting the exchange of for the Merger Consideration for of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "CertificatesCERTIFICATES"). At or ) that, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforrepresented Shares. Upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such a properly completed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Paying Agent shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares formerly represented by such Certificate, in exchange therefor, and such Certificate shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Merger Sub or the Company, or any direct or indirect subsidiary thereof) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesConsideration. If any the Merger Consideration (or any portion thereof) is to be paid delivered to a any Person (as defined in Section 8.8) other than the Person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes (as defined in Section 3.11) required by reason of the payment of such the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(cb) Promptly following the date which is 180 days after Prior to the Effective Time, the Exchange Agent's duties Parent or Merger Sub shall terminatedeposit, and any funds deposited or cause to be deposited, in trust with the Exchange Paying Agent that remain unclaimed by for the benefit of the holders of Certificates Shares the aggregate Merger Consideration to which holders of Shares shall be paid entitled at the Effective Time pursuant to the Surviving Corporation upon demand. Thereafter, each holder Section 1.8(a); PROVIDED that no such deposit shall relieve Parent of a Certificate may surrender such Certificate its obligation to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to pay the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded pursuant to general creditors of the Surviving CorporationSection 1.8(a).
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after On or prior to the Effective TimeClosing Date, Parent shall select a reputable bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the "Exchange “Paying Agent") shall act as exchange agent in effecting the exchange ”). As of the Merger Consideration Effective Time, Parent shall have deposited with the Paying Agent, in trust for certificates representing the benefit of the Persons who were registered holders of Company Ordinary Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or and Company Founder Shares immediately prior to the Effective Time, FKW Sub shall deposit cash in an amount equal to the aggregate consideration payable pursuant to Section 1.5(a)(ii). The cash amount so deposited with the Exchange Paying Agent is referred to as the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent“Payment Fund.”
(b) Promptly after As soon as reasonably practicable following the Effective Time, the Exchange Company will provide to the Paying Agent shall a list of the registered holders of Company Ordinary Shares and Company Founder Shares at the Effective Time and the Paying Agent will mail to each record holder of Certificates such registered holders: (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and that the Company may reasonably approve prior to the Effective Time (which shall specify including a provision confirming that delivery of Company Share Certificates shall be effected, and risk of loss and title to the Company Share Certificates shall pass, only upon proper delivery of the such Company Share Certificates to the Exchange Paying Agent); and (ii) and instructions for use in surrendering effecting the surrender of Company Share Certificates and receiving in exchange for the Merger Consideration thereforpursuant to such letter of transmittal. Upon the surrender of each Certificatea Company Share Certificate to the Paying Agent in exchange for the Merger Consideration, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other customary documents as may be reasonably required by the instructions thereto, Paying Agent or Parent: (A) the holder of such Company Share Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Company Ordinary Shares or Company Founder Shares, as applicable, formerly represented by such the Company Share Certificate, ; and such (B) the Company Share Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration cash is to be paid to a Person other than the Person in whose name the Company Share Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange payment that the Company Share Certificate so surrendered shall be properly endorsed (with such signature guarantees as may be required by the letter of transmittal) or otherwise in proper form for transfer, and that the Person requesting such exchange shall payment shall: (1) pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the such payment of such Merger Consideration to a Person other than the registered holder of the Company Share Certificate surrendered, ; or such Person shall (2) establish to the satisfaction of the Exchange Agent Parent that such tax Tax has been paid or is not applicablerequired to be paid. Notwithstanding The exchange procedures shall comply with such procedures as may be required by the foregoingIsraeli Tax Rulings (as defined in Section 5.3(b)), neither if obtained, and shall permit Parent (after consultation with the Exchange Agent nor Company) to require holders of Company Ordinary Shares to provide any party hereto information as is reasonably needed to comply with the Israeli Tax Rulings. Until surrendered as contemplated by this Section 1.7(b), each Company Share Certificate shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned propertydeemed, escheat from and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, to represent only the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid right to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive cash in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Company Ordinary Shares or Company Founder Shares, as applicable, represented by such Company Share Certificate, without interest thereon. If any Company Share Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as a condition precedent to the delivery of any Merger Consideration, require the owner of such lost, stolen or destroyed Company Share 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 Paying Agent, Parent, the Surviving Company or any affiliated party with respect to such Company Share Certificate.
(c) Any portion of the Payment Fund that remains undistributed to holders of Company Share Certificates as of the date 180 days after the Closing Date shall be delivered by the Paying Agent to Parent upon demand, and any holders of Company Share Certificates who have not theretofore surrendered their Company Share Certificates in accordance with this Section 1.7 shall thereafter look only to Parent for satisfaction of their claims for 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.
(d) After Each of the Effective TimePaying Agent, there Parent and the Surviving Company shall be no transfers on entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder or former holder of Company Ordinary Shares, Company Founder Shares or Company Options such amounts as Parent reasonably determines is required to be deducted or withheld therefrom or in connection therewith under the stock transfer books Code, under the Israeli Income Tax Ordinance New Version, 1961, as amended, or under any provision of U.S. state or local or non-U.S. Tax law or under any other applicable Legal Requirement, provided that, with respect to any withholding under Israeli Legal Requirements, the Paying Agent, Parent and the Surviving Company shall act in accordance with the Israeli Tax Rulings, if obtained. 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) None of the Surviving Corporation of any Shares. IfPaying Agent, after the Effective Time, Certificates are presented to Parent or the Surviving Corporation or the Exchange Agent, they Company shall be canceled and exchanged for the liable to any holder or former holder of Company Ordinary Shares, Company Founder Shares or to any other Person with respect to any Merger Consideration delivered to any public official pursuant to any applicable Merger Considerationabandoned property law, as provided in this Article I, subject to applicable escheat law in the case of Dissenting Sharesor similar Legal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Sun Pharmaceutical Industries LTD)
Exchange of Certificates. (a) From Parent shall designate a bank or trust company, or an affiliate thereof, of nationally recognized standing to act as agent for the holders of shares of Company Stock in connection with the Merger (the "Paying Agent") for the purpose of exchanging certificates representing Shares and after to receive the funds to which holders of shares of Company Stock shall become entitled pursuant to Sections 2.1(c) and 2.1(d) hereof. Prior to the Effective Time, a bank Parent shall take all steps necessary to deposit or trust company cause to be designated deposited with the Paying Agent such funds for timely payment hereunder. Such funds shall be invested by FKW Sub and the Paying Agent as directed by Parent or the Surviving Corporation.
(b) As soon as reasonably acceptable practicable after the Effective Time but in no event more than three business days thereafter, the Paying Agent shall mail to each holder of record of a certificate or certificates, which immediately prior to the Effective Time represented outstanding shares of Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 Stock (the "Certificates"). At or prior , whose shares were converted pursuant to Section 2.1 hereof into the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary right to enable the Exchange Agent to exchange receive the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange AgentPaying Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoproperly completed, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number for each share of Shares Company Stock formerly represented by such Certificate, Certificate and such the Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number forthwith be cancelled. If payment of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender any portion of the Certificates. If any Merger Consideration is to be paid made to a Person person other than the Person person in whose name the surrendered Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Person Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such exchange payment shall pay to the Exchange Agent have paid any transfer or and other taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, surrendered or such Person shall establish have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax either has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 2.2, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed at any time after the Effective Time to a holder of Shares for any represent only the right to receive the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsin cash as contemplated by this Section 2.2.
(c) Promptly following At the date which is 180 days Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Company Stock on the records of the Company. From and after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid evidencing ownership of shares of Company Stock outstanding immediately prior to the Surviving Corporation upon demand. ThereafterEffective Time shall cease to have any rights with respect to such Shares, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the except as otherwise provided for herein or by applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shareslaw. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article III.
(d) At any time following six months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which had been made available to the Paying Agent and which have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of a Certificate for Merger Consideration delivered to a public official pursuant to any applicable law in abandoned property, escheat or similar law. Any amounts remaining unclaimed by holders of Shares two years after the case Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of Dissenting Sharesany 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 person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.2(a) hereof to pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand.
Appears in 1 contract
Sources: Merger Agreement (Muse John R)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company Prior to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange receiving any portion of the Merger Consideration for Consideration, each holder of record of a certificate or certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that immediately prior to the Effective TimeTime represented issued and outstanding Company Shares (each, FKW Sub a “Certificate” and, collectively, the “Certificates”), shall deposit with have delivered to the Exchange Agent (i) a properly completed and duly executed letter of transmittal (a “Letter of Transmittal”) and (ii) the amount necessary to enable Certificates held of record by such holder. Such Letter of Transmittal shall have been previously delivered by the Exchange Agent to exchange such holder along with instructions thereto and a notice to the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify effect that delivery of the Certificates shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificatea Certificate to the Company, together with such letter Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by consideration into which the number of Shares shares represented by such CertificateCertificate shall have been converted pursuant to Section 2.4, and such the Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely If the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender portion of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration exchange to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the reasonable satisfaction of the Exchange Agent Surviving Company that such tax Tax has been paid or is not applicable. Notwithstanding Until surrendered as contemplated by this Section 2.7, each Certificate shall be deemed as of the foregoingEffective Time of the Merger to represent only the right to receive, neither upon surrender of such Certificate in accordance with this Section 2.7, the consideration into which the shares represented by such Certificate shall have been converted pursuant to Section 2.3. If any certificate evidencing any Company Share shall have been lost, stolen or destroyed, the Exchange Agent nor may, in its discretion and as a condition precedent to the issuance of any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official consideration pursuant to applicable abandoned propertySection 2.3, escheat and similar lawsrequire the owner of such lost, stolen or destroyed certificate to provide an appropriate affidavit with respect to such certificate.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the Effective Time, Parent shall appoint the Paying Agent to act as the Paying Agent in connection with the Merger. From and after the Effective Time, each holder of a bank or trust company to be designated by FKW Sub and reasonably acceptable certificate which immediately prior to the Effective Time represented outstanding shares of Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 Common Stock (the "Certificates") shall be entitled to receive in exchange therefor, upon surrender thereof to the Paying Agent, a check representing the Merger Consideration to which such holder shall have become entitled pursuant to Section 2.1((c)) hereof. At or Immediately prior to the Effective Time, FKW Sub shall deposit with Parent will deliver to the Exchange Agent Paying Agent, in trust for the benefit of the holders of Company Common Stock, cash in the amount necessary to enable the Exchange Agent to exchange of the Merger Consideration for Certificates received by the Exchange Agentpayable pursuant to Section 2.1((c)) hereof.
(b) Promptly after the Effective Time, the Exchange Paying Agent shall mail to each record holder of Certificates the Company Common Stock as of the Effective Time, 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 proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificates in exchange for the Merger Consideration. Upon surrender to the Paying Agent of a Certificate, together with such letter of transmittal duly executed executed, and completed in accordance with the instructions theretoany other required documents, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to a check representing the Merger Consideration multiplied by the number of Shares represented by to which such Certificateholder shall have become entitled pursuant to Section 2.1((c)) hereof, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender If any portion of the Certificates. If any Merger Consideration is to be paid to a Person person other than the Person person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of such exchange payment that the Person Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment issuance of such Merger Consideration a check representing cash to a Person person other than the registered holder of the Certificate surrendered, surrendered or such Person shall establish to the satisfaction of the Exchange Agent Parent that such tax has been paid or is not applicable. Notwithstanding Until surrendered in accordance with the foregoingprovisions of this Section 2.2, neither each Certificate shall represent for all purposes only the Exchange Agent nor any party hereto shall be liable right to a holder of Shares for any receive the Merger Consideration delivered to a public official pursuant to applicable abandoned propertyas provided in Section 2.1 hereto, escheat and similar lawswithout any interest thereon.
(c) Promptly following If any Certificate has been lost, stolen or destroyed, upon the date which is 180 days after making of an affidavit of that fact by the Effective Timeperson claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed posting by holders such person of Certificates shall be paid to a bond in such reasonable amount as the Surviving Corporation upon demand. Thereaftermay direct as indemnity against any claim that may be made against it with respect to such Certificate, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive Paying Agent shall issue in exchange therefor an amount equal to for such lost, stolen or destroyed Certificate the Merger Consideration multiplied by the number due to such person as provided in Section 2.1 of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationthis Agreement.
(d) Parent shall be entitled to deduct and withhold, or cause the Paying Agent to deduct and withhold, from the consideration otherwise payable pursuant to this Agreement to any holder of Certificates such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of any other Tax Law. To the extent that amounts are so withheld, (i) such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificates in respect of which such deduction and withholding was made and (ii) Parent shall provide, or cause the Paying Agent to provide, to the holders of such Certificates written notice of the amounts so deducted or withheld.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation Company of any Sharesthe shares of the Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Parent or the Exchange AgentCompany for transfer, they shall be canceled and exchanged for the applicable Merger Consideration, Consideration as provided described in Sections 2.1 and 2.2 hereof and in accordance with the Plan of Merger.
(f) Any cash delivered to the Paying Agent for payment of the Merger Consideration that remains unclaimed by the former shareholders of the Company for 180 days following the Effective Time shall be delivered by the Paying Agent to Parent. Any former shareholders of the Company who have not theretofore complied with this Article I, subject Section 2.2 shall thereafter look only to applicable law Parent for satisfaction of their claim for the consideration set forth in the case Plan of Dissenting SharesMerger, without any interest thereon. Notwithstanding the foregoing, neither Parent nor the Company shall be liable to any holder of shares of the Company Common Stock for any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective TimeDate, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent (the "Exchange Agent") shall act as exchange agent in effecting the exchange of certificates (the "Certificates") for the Merger Consideration for certificates representing Consideration, which Certificates, prior to the Effective Date, represented Shares entitled to payment pursuant to Section 1.6 (the "Certificates")2.5. At On or prior to before the Effective TimeDate, FKW Sub Parent or Purchaser shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration in trust for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery benefit of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforholders of Certificates. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to and the issuance and delivery by the Exchange Agent of the Merger Consideration multiplied by the number of Shares represented by in exchange therefor, such Certificate, and such Certificate Certificates shall forthwith be canceledcancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Shares held by Purchaser, Parent or Company or any direct or indirect subsidiary of Purchaser, Parent or Company or Dissenting Shares) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest Upon the surrender and exchange of such an outstanding Certificate, the holder shall be paid or accrue on receive the Merger Consideration payable upon the surrender of the CertificatesConsideration, without any interest thereon. If any Merger Consideration cash is to be paid to a Person name other than the Person name in whose name which the Certificate representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person 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 Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrendered, or such Person 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 of Shares for any Merger Consideration or interest or other payments made with respect to the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(cb) Promptly following the date which is 180 days six months after the Effective TimeDate, the Exchange Agent shall return to the Surviving Corporation all Merger Consideration in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate representing a Share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereon.
(c) Promptly after the Effective Date, but the Exchange Agent shall have no greater rights against mail to each record holder of Certificates which immediately prior to the Surviving Corporation than may be accorded to general creditors Effective Date represented Shares, a form of letter of transmittal and instructions for use in surrendering such Certificates and receiving the Surviving CorporationMerger Consideration therefor.
(d) After the Effective TimeDate, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective TimeDate, Certificates for Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article I2, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Tender Offer Statement
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub the Parent or the Purchaser and reasonably acceptable consented to by the Company (such consent not to be unreasonably withheld, delayed or conditioned) (the "Exchange Payment Agent") shall act as exchange payment agent in effecting the exchange exchange, for the Cash Consideration multiplied by the number of Shares formerly represented thereby, of certificates (the Merger Consideration for certificates representing "Certificates") that, prior to the Effective Time, represented Shares entitled to payment pursuant to Section 1.6 1.5(a)(i). From time to time, the Parent shall, or shall cause the Purchaser to, deposit with the Payment Agent in trust for the benefit of the holders of Certificates, such amount of the Cash Consideration in immediately available funds needed to pay promptly for surrendered Shares as provided in this Section 1.7 (the "CertificatesPayment Fund"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective TimeTime (but in any event within two business days thereof), the Exchange Payment Agent shall mail to each record holder of Certificates that immediately prior to the Effective Time represented Shares a form of letter of transmittal (which in form and substance reasonably satisfactory to the Parent) and instructions for use in surrendering such Certificates and receiving the Cash Consideration therefor. Upon the surrender of each such Certificate together with a duly completed and executed letter of transmittal, the Payment Agent shall specify that delivery pay the holder of such Certificate the Cash Consideration multiplied by the number of Shares formerly represented by such Certificate, without any interest thereon, in exchange therefor, and such Certificate shall forthwith be cancelled. Delivery shall be effected, and risk of loss and title to the Certificates Certificate shall pass, only upon proper delivery of the Certificates Certificate to the Exchange Payment Agent) , and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed shall so reflect. Until so surrendered and completed in accordance with exchanged, each such Certificate (other than Certificates representing Shares held by the instructions theretoParent, the holder Purchaser or the Company or any direct or indirect subsidiary of such Certificate the Parent, the Purchaser or the Company or Dissenting Shares) shall be entitled represent solely the right to receive in exchange therefor an amount equal to the Merger Cash Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No without any interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesthereon. If any Merger Consideration cash is to be paid to a Person person other than the Person holder in whose name the Certificate representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange payment that the Person person requesting such exchange payment shall pay to the Exchange Payment Agent any transfer or other taxes required by reason of the payment of such Merger Consideration cash to a Person person other than the registered holder of the Certificate surrendered, or such Person person shall establish to the satisfaction of the Exchange Payment Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Payment Agent nor any party hereto shall be liable to a holder of Shares for any Merger Cash Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(b) To the extent not immediately required for payment for surrendered Shares as provided in Section 1.7(a), the Payment Fund shall be invested by the Payment Agent, as directed by the Parent (so long as such directions do not impair the rights of holders of Shares), in direct obligations of the United States of America, 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, commercial paper rated of the highest quality by Mood▇'▇ ▇▇▇estors Services, Inc. or Standard & Poor's Ratings Group, or certificates of deposit issued by a commercial bank having at least $300,000,000 in assets (a "Qualified Commercial Bank"); and any net earnings with respect thereto shall be paid to the Parent as and when requested by the Parent.
(c) The Payment Agent shall, pursuant to irrevocable instructions, make the payments referred to in Section 1.5(a)(i) out of the Payment Fund. Promptly following the date which that is 180 days nine months after the Effective Time, the Exchange Payment Agent shall deliver to the Parent all cash, certificates and other documents in its possession relating to the transactions described in this Agreement, and the Payment Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate formerly representing a Share may surrender such Certificate to the Surviving Corporation along with or the applicable letter of transmittal Parent and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateCash Consideration, without any interest thereon, thereon but shall have no greater rights against the Surviving Corporation or the Parent than may be accorded to general creditors of the Surviving CorporationCorporation or the Parent under applicable law.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange Payment Agent, they shall be canceled cancelled and exchanged for the applicable Merger Cash Consideration, as provided in this Article I1, subject to applicable law in the case of Dissenting Shares.
(e) From and after the Effective Time, holders of certificates theretofore evidencing Shares shall cease to have any rights as Stockholders, except as provided herein or by law. After the Effective Time, the Surviving Corporation shall be entitled to cause the Shares to be delisted from the Nasdaq Stock Market(R).
(f) Each of the Surviving Corporation and the Parent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of state, local or foreign tax law (other than any such tax that may arise due to the status of the Parent as a non-U.S. corporation). To the extent that amounts are so withheld by the Surviving Corporation or the Parent, 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 in respect of which such deduction and withholding was made by the Surviving Corporation or the Parent, as the case may be, and shall promptly be paid by the Parent or the Purchaser, as the case may be, to the applicable taxing authority.
(g) 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 Surviving Corporation, the posting by such person of a bond, in such commercially reasonable amount and on such commercially reasonable terms as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Parent shall issue in exchange for such lost, stolen or destroyed Certificate, the Cash Consideration.
(h) Except for the distribution of shares of Harbor Global contemplated by Article 8, the Cash Consideration shall be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, recapitalization, exchange, subdivision, combination of, or other similar change in the Shares that shall be effective or be authorized after the date of this Agreement and prior to the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Pioneer Group Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Purchaser shall appoint a bank or trust company to act as paying agent hereunder, which shall be designated by FKW Sub American Stock Transfer and reasonably acceptable to Trust Company, or such other entity as Purchaser and the Company may mutually select (the "Exchange Paying Agent") shall act as exchange agent in effecting for the exchange payment of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (upon surrender of Certificates. All of the "Certificates"). At or prior to fees and expenses of the Effective Time, FKW Sub Paying Agent shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received be borne by the Exchange AgentSurviving Corporation.
(b) Promptly Purchaser shall take all steps necessary to enable and cause the Surviving Corporation to provide the Paying Agent with cash in amounts necessary to pay the Merger Consideration, when and as such amounts are needed by the Paying Agent.
(c) As soon as reasonably practicable after the Effective Time, the Exchange Paying Agent shall mail to each record holder of Certificates record of Common Stock immediately prior to the Effective Time (excluding any Dissenting Shares)
(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 proper delivery of such Certificates to the Paying Agent and shall be in such form and have such other provisions as Purchaser shall reasonably specify) and (ii) instructions for the use thereof in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent) and instructions for use in surrendering Certificates and receiving Paying Agent or to such other agent or agents as may be appointed by the Merger Consideration therefor. Upon the surrender of each CertificateSurviving Corporation, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an a bank check in the amount equal to of cash into which the Merger Consideration multiplied by the number shares of Shares Common Stock theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 2.2, and such Certificate the Certificates so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall will be paid or will accrue on the Merger Consideration cash payable upon the surrender of the Certificatesany Certificate. If any Merger Consideration payment is to be paid made to a Person person other than the Person person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of payment that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment transfer of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Notwithstanding Until surrendered as contemplated by this Section 2.3, each Certificate (other than Certificates representing Dissenting Shares) shall be deemed at any time after the foregoingEffective Time to represent only the right to receive upon such surrender the amount of cash, neither without interest, into which the Exchange shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 2.2.
(d) Purchaser shall have the right to make additional rules, not inconsistent with the terms of this Agreement, governing the payment of cash for shares of Common Stock converted into the right to receive the Merger Consideration.
(e) None of the Purchaser, the Company, the Surviving Corporation, the Paying Agent nor or any party hereto other person shall be liable to a any former holder of Shares shares of Common Stock for any Merger Consideration amount properly delivered to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cf) Promptly following In the date which is 180 days after event that any Certificate shall have been lost, stolen or destroyed, upon the Effective Time, making of an affidavit of that fact by the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender person claiming such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned propertybe lost, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied stolen or destroyed and, if required by the number Purchaser, the posting by such person of Shares represented by a bond in such reasonable amount as the Purchaser may direct as indemnity against any claim that may be made against it with respect to such Certificate, without any interest thereonthe Paying Agent will issue in exchange for such lost, but shall have no greater rights against stolen or destroyed Certificate the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided deliverable in respect thereof pursuant to this Article I, subject to applicable law in the case of Dissenting SharesAgreement.
Appears in 1 contract
Sources: Merger Agreement (Lion Brewery Inc)
Exchange of Certificates. (a) From and after Prior to the Effective Time, Parent shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to act as agent for the Company holders of the Shares in connection with the Merger (the "Exchange Paying Agent") shall act to receive the funds, as exchange agent in effecting the exchange needed, to which holders of the Merger Consideration for certificates representing Shares shall become entitled to payment pursuant to Section 1.6 2.1(a). Such funds shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation. All interest earned on such funds shall be paid to Parent.
(b) At the Effective Time, Parent will instruct the Paying Agent to promptly, and in any event not later than three business days following the Effective Time, mail to each holder of record of a certificate or certificates, which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Certificates"). At or prior , whose Shares were converted pursuant to Section 2.1(a) into the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary right to enable the Exchange Agent to exchange receive the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange AgentPaying Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by the Company, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number for each share of Shares Company Common Stock formerly represented by such Certificate, to be mailed within three business days of receipt thereof, and such the Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateforthwith be cancelled. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender If payment of the Certificates. If any Merger Consideration is to be paid made to a Person person other than the Person person in whose name the surrendered Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Person Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such exchange payment shall pay to the Exchange Agent have paid any transfer or and other taxes required by reason of the payment of such the Merger Consideration to a Person person other than the registered holder of the Certificate surrendered, surrendered or such Person shall establish have established to the satisfaction of the Exchange Agent Surviving Corporation that such tax either has been paid or is not applicable. Notwithstanding Until surrendered as contemplated by this Section 2.2, each Certificate (other than Certificates representing Company Common Stock held by Parent or the foregoingPurchaser, neither or any subsidiary of Parent or the Exchange Agent nor any party hereto Purchaser, or Dissenting Shares (as defined in Section 2.4)) shall be liable deemed at any time after the Effective Time to a holder of Shares for any represent only the right to receive the Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsas contemplated by this Section 2.2.
(c) Promptly following In the date which is 180 days after event any Certificate shall have been lost, stolen or destroyed, upon the Effective Timemaking of an affidavit of that fact by the Person (as defined in Section 3.1) claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent's duties shall terminatePaying Agent will issue in exchange for such lost, and any funds deposited stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article II, provided that the Exchange Agent that remain unclaimed by holders of Certificates shall be Person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation upon demand. Thereafter, each holder of a Certificate bond in such sum as it may surrender such Certificate to direct or otherwise indemnify the Surviving Corporation along with the applicable letter of transmittal and (subject in a manner satisfactory to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without it against any interest thereon, but shall have no greater rights claim that may be made against the Surviving Corporation than may be accorded with respect to general creditors of the Surviving CorporationCertificate claimed to have been lost, stolen or destroyed.
(d) After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers on the stock transfer books of the Surviving Corporation of any SharesShares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentCorporation, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article I, subject to applicable law in the case of Dissenting SharesII.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a American Stock Transfer & Trust Co., or such other bank or trust company to be designated by FKW Sub as the Surviving Corporation and reasonably acceptable to the Company Parent shall mutually determine, (the "Exchange AgentDEPOSITARY") shall act as exchange agent Depositary in effecting the exchange payment of the Merger Consideration for upon surrender of certificates representing Shares entitled to payment pursuant to Section 1.6 (the "CertificatesCERTIFICATES"). At or ) that, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforrepresented Shares. Upon the surrender of each Certificatesuch Certificate formerly representing Shares, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, Depositary shall pay the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration Per Share Amount multiplied by the number of Shares formerly represented by such Certificate, in exchange therefor, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate (other than Certificates representing Dissenting Shares or Shares held by Parent, Acquisition or the Company, or any direct or indirect Subsidiary thereof) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificatePer Share Amount. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesPer Share Amount. If the Per Share Amount (or any Merger Consideration portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Certificate formerly representing Shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent Depositary any transfer or other taxes required by reason of the payment of such Merger Consideration the Per Share Amount to a Person person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Depositary that such tax has been paid or is not applicable. Notwithstanding .
(b) When and as needed, Parent or the foregoingSurviving Corporation shall deposit, neither or cause to be deposited, in trust with the Exchange Agent nor any party hereto Depositary the Merger Consideration to which holders of Shares shall be liable to a holder of Shares for any Merger Consideration delivered to a public official entitled at the Effective Time pursuant to applicable abandoned property, escheat and similar lawsSection 2.7(a).
(c) The Merger Consideration shall be invested for the benefit of Parent by the Depositary, as directed by Parent, provided such investments shall be limited to direct obligations of the United States of America, 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, commercial paper rated of the highest quality by Mood▇'▇ ▇▇▇estors Services, Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a commercial bank having at least $1,000,000,000 in assets.
(d) Promptly following the date which is 180 days six months after the Effective Time, Parent shall cause the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid Depositary to deliver to the Surviving Corporation upon demandall cash and documents in its possession relating to the transactions described in this Agreement, and the Depositary's duties (which shall be defined in a "Paying Agency Agreement" to be entered into between Parent, Acquisition and Depositary) shall terminate. Thereafter, each holder of a Certificate formerly representing a Share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereon. After such termination of the Depositary's duties under the Paying Agency Agreement, but Parent shall have no greater rights against assure that the Surviving Corporation than may be accorded has sufficient funds to general creditors of pay the Merger Consideration when and as needed and shall cause the Surviving CorporationCorporation to pay the Merger Consideration to holders of Certificates formerly representing Shares upon the proper surrender of such Certificates for payment.
(de) Promptly after the Effective Time and in connection with the Merger, Parent shall cause the Depositary to mail to each record holder of Certificates that immediately prior to the Effective Time represented Shares a form of letter of transmittal and instructions for use in surrendering such Certificates and receiving the Per Share Amount in exchange therefor.
(f) After the close of business on the day prior to the date of the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates formerly representing Shares are presented to the Surviving Corporation or the Exchange AgentDepositary, they shall be canceled and exchanged for the applicable Merger ConsiderationPer Share Amount, as provided in this Article IIII, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Merger Agreement (Techforce Corp)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent shall act as exchange agent (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration Price for certificates representing which prior to the Effective Time represented Shares entitled and which as of the Effective Time represent the right to payment pursuant to Section 1.6 receive the Merger Price (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration thereforPrice therefor in a form approved by Parent and the Company. At or prior to the Effective Time, the Purchaser shall deposit in trust with the Exchange Agent immediately available funds in an amount sufficient to pay the Merger Price for all such Shares to the Company's stockholders as contemplated by this Section 2.3. 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 canceled. Until so surrendered and exchanged, each Certificate shall represent solely the right to receive the Merger Price for the Shares represented thereby, without any interest thereon. Upon the surrender and exchange of such an outstanding Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate thereof shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration Price multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No without any interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesthereon. If any Merger Consideration cash is to be paid to a Person name other than the Person that in whose name which the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person 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 Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrendered, or such Person 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 of Shares Certificates for any part of the Merger Consideration delivered Price payments made to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cb) Promptly following the date which is 180 days after first anniversary of the Effective Time, the Exchange Agent shall return to the Surviving Corporation all cash relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by Price for such CertificateShares, 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.
(d) After Corporation under applicable law. At and after the Effective Time, 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 to perfect their right of appraisal with respect to their Shares pursuant to the applicable provisions of the DGCL and Section 1.4 below, and there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented Shares that were outstanding immediately prior to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesMerger.
Appears in 1 contract
Sources: Merger Agreement (Versatility Inc)
Exchange of Certificates. (a) From and after Prior to the Effective TimeClosing Date, the Parent shall select a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company act as exchange agent (the "Exchange Agent") shall act as exchange agent in effecting connection with the exchange surrender of the Merger certificates evidencing shares of Company Common Stock converted into Cash Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 the Merger. At and following the Effective Time, Parent shall deposit with the Exchange Agent an amount of cash representing the Total Purchase Price less the Closing Escrow Amount.
(b) As soon as practicable after the Effective Time, Parent shall cause the Exchange Agent to mail to each person who was, at the Effective Time, a holder of record of a certificate or certificates that immediately prior to the Effective Time evidenced outstanding shares of Company Common Stock (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent, which shall be in a form and contain any other provisions as Parent and the Surviving Corporation may reasonably agree and (ii) and instructions for use in surrendering effecting the surrender of the Certificates and receiving in exchange for the Merger Consideration thereforCash Consideration. Upon the proper surrender of each CertificateCertificates to the Exchange Agent, together with such a properly completed and duly executed letter of transmittal duly executed and completed in accordance with such other documents as may be required by the instructions theretoExchange Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Cash Consideration multiplied by the number of Shares represented by that such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely holder has the right to receive an amount equal pursuant to the Merger Consideration multiplied by terms hereof, and the number of Shares represented by such Certificate. No interest Certificate so surrendered shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatescancelled. If any Merger portion of the Cash Consideration is to be paid to a Person person other than the Person person who is the record holder of the Company Common Stock at the Effective Time, it shall be a condition to such payment that the certificate evidencing the Company Common Stock so surrendered shall be properly endorsed or otherwise be in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall proper form for transfer and that it be accompanied by all documents required to evidence and effect such transfer, transfer and it shall be a condition to such exchange that the Person requesting such exchange shall pay by evidence reasonably satisfactory to the Exchange Agent Surviving Corporation or Parent that any applicable stock transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawspaid.
(c) Promptly following Except as otherwise expressly provided herein, the date which is 180 days Surviving Corporation shall pay all charges and expenses of the constituent corporations, including those of the Exchange Agent, in connection with the exchange of Certificates for shares of Merger Stock. Any Cash Consideration not exchanged pursuant to Section 1.4(b) hereof for Company Common Stock within six months after the Effective Time, the Exchange Agent's duties Time shall terminate, and any funds deposited with be returned by the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. ThereafterCorporation, each holder of a Certificate may surrender such Certificate which shall thereafter act as exchange agent subject to the Surviving Corporation along with the applicable letter rights of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number holders of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving CorporationCompany Common Stock hereunder.
(d) After At the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation Company shall be closed and no transfer of shares of Company Common Stock shall thereafter be made.
(e) If any SharesCertificates shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificates to be lost, stolen or destroyed, the Exchange Agent will deliver in exchange for such lost, stolen or destroyed Certificates the Cash Consideration for the shares represented thereby, deliverable in respect thereof, as determined in accordance with the terms hereof. IfWhen authorizing such payment in exchange for any lost, after stolen or destroyed Certificates, the Effective Timeperson to whom the Cash Consideration is to be issued, Certificates are presented as a condition precedent to such delivery, shall give Parent an indemnity against any claim that may be made against Parent with respect to the Surviving Corporation Certificates alleged to have been lost, stolen or the Exchange Agent, they destroyed.
(f) No holder of Company Common Stock shall be canceled and exchanged for entitled to any interest on the applicable Merger Cash Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective TimeUpon surrender of any Certificates, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At together with duly executed stock powers, on or prior to the Effective TimeClosing Date to Parent, FKW Sub shall deposit with Newco or the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions theretoSurviving Corporation, the holder of such each Certificate shall be entitled to receive from Parent or the Surviving Corporation on the Closing Date in exchange therefor an amount equal for each share of Common Stock, evidenced thereby, the Closing Common Stock Consideration to the Merger Consideration multiplied by the number of Shares represented by which such Certificateholder is entitled pursuant to Section 2.8, and such without interest. Each Certificate surrendered pursuant to this Section 2.11(a) shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid If payment or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration delivery is to be paid made to a Person other than the Person in whose name the a Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on the certificate or any related stock power shall be properly guaranteed and that the Person requesting such exchange shall payment either pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, so surrendered or such Person shall establish to the satisfaction of Parent and the Exchange Agent Surviving Corporation that such tax Tax has been paid or is not applicable. Notwithstanding Until surrendered in accordance with the foregoingprovisions of this Section 2.11, neither each Certificate (other than Certificates canceled pursuant to Section 2.8(b)) shall represent for all purposes only the Exchange Agent nor any party hereto right to receive the Merger Consideration in the form provided for by this Agreement, without interest. Except as provided herein, all cash paid upon surrender of the Certificates in accordance with this Section 2.11 shall be liable deemed to a holder have been paid in satisfaction of Shares for any Merger Consideration delivered all rights pertaining to a public official pursuant to applicable abandoned property, escheat and similar lawsthe shares of Common Stock represented thereby.
(cb) Promptly following In the date which is 180 days after event that any Certificate shall have been lost, stolen or destroyed, upon the Effective Timemaking of an affidavit of that fact by the registered holder of such lost, the Exchange Agent's duties shall terminatestolen or destroyed Certificate in form and substance acceptable to Parent and Newco, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive will pay in exchange therefor an amount equal to for such lost, stolen or destroyed Certificate the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law respect thereof in the case of Dissenting Sharesmanner set forth in Section 2.8.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank each holder of an outstanding certificate that immediately prior to the Effective Time represented Shares shall be entitled to receive in exchange therefor, upon surrender thereof to ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services, ▇▇▇▇▇▇ Bank, or trust company such other exchange agent as is reasonably satisfactory to be designated by FKW Sub Parent and reasonably acceptable to the Company (the "Exchange Agent") ), the Merger Consideration to which such holder is entitled pursuant to Section 4.1(a). Notwithstanding any other provision of this Agreement, without regard to when such certificates representing Shares are surrendered for exchange as provided herein, no interest shall act as exchange agent in effecting the exchange be paid on any payment of the Merger Consideration.
(b) If any Merger Consideration is to be issued in a name other than that in which the certificate for certificates representing Shares entitled surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of such Merger Consideration in a name other than that of the registered holder of the certificate surrendered, or shall establish to payment pursuant to Section 1.6 the satisfaction of Parent that such tax has been paid or is not applicable.
(the "Certificates"). At or prior to c) Promptly at the Effective Time, FKW Sub Parent shall deposit with make available to the Exchange Agent the amount cash in immediately available United States funds and Parent Common Stock necessary to enable the Exchange Agent to exchange for payment of all the Merger Consideration for Certificates received by the Exchange AgentConsideration.
(bd) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "Company Certificates") (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Company Certificates in exchange for the applicable Merger Consideration. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other documents as the instructions theretoExchange Agent shall reasonably require, the holder of such Certificate Company Certificates shall be entitled to receive in exchange therefor an amount equal the applicable Merger Consideration into which the Shares theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the Merger Consideration multiplied by the number provisions of Shares represented by such CertificateSection 4.1(a), and such Certificate the Company Certificates so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(e) Promptly following the date which is nine months after the Effective Date, the Exchange Agent shall deliver to Parent all cash, certificates 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 Merger Consideration, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of Company Common Stock for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(cf) Promptly following In the date which is 180 days after event any Company Certificate shall have been lost, stolen or destroyed, upon the Effective Timemaking of an affidavit of that fact by the person claiming such Company Certificate to be lost, the Exchange Agent's duties shall terminatestolen or destroyed, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demandshall issue in exchange for such lost, stolen or destroyed Company Certificate the Merger Consideration deliverable in respect thereof determined in accordance with this Article IV. ThereafterWhen authorizing such payment in exchange therefor, each holder the Board of a Certificate may surrender such Certificate to Directors of the Surviving Corporation along with the applicable letter of transmittal may, in its discretion and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal as a condition precedent to the Merger Consideration multiplied by issuance thereof, require the number owner of Shares represented by such Certificatelost, without stolen or destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any interest thereon, but shall have no greater rights that may be made against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented with respect to the Surviving Corporation Company Certificate alleged to have been lost, stolen or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Sharesdestroyed.
Appears in 1 contract
Sources: Merger Agreement (Comforce Corp)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub the Parent and reasonably acceptable to the Company (the "Exchange Paying Agent") shall act as exchange paying agent in effecting the exchange of for the Merger Consideration for of certificates representing that, prior to the Effective Time, represented Public Shares entitled to payment pursuant to Section 1.6 (1.03. Upon the "Certificates"). At or surrender of each such certificate and the delivery by the Paying Agent of the Merger Consideration in exchange therefor, the certificates that, prior to the Effective Time, FKW Sub represented outstanding Public Shares shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Public Shares represented by such Certificatecertificate. No interest Upon the surrender and exchange of such outstanding certificate, the holder shall be paid or accrue on receive the Merger Consideration payable upon the surrender of the CertificatesConsideration, without any interest thereon. If any Merger Consideration cash is to be paid to a Person person other than the Person a person in whose name the Certificate such surrendered in exchange therefor certificate is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person person requesting such payment or exchange shall pay to the Exchange Paying Agent any transfer or other taxes required by reason of the payment of such Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrenderedsuch surrendered certificate, or such Person person shall establish to the satisfaction of the Exchange Paying Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Paying Agent nor any party hereto to any such exchange shall be liable to a holder of Public Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned propertyproperty laws.
(b) At or prior to the Effective Time, escheat and similar lawsParent shall provide the Paying Agent with sufficient cash to pay the Merger Consideration to each holder of Public Shares entitled thereto.
(c) Promptly following the date which is 180 days six months after the Effective Time, the Exchange Paying Agent shall return to the Surviving Corporation all cash (together with all interest earned thereon) and other instruments in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate certificate that immediately prior to the Effective Time represented Public Shares may surrender such Certificate certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, without any interest thereoninterest, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving CorporationCorporation under Tennessee law.
(d) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that immediately prior to the Effective Time represented Public Shares a form of letter of transmittal and instructions for use in surrendering such certificates and receiving the Merger Consideration therefor.
(e) After the Effective Time, there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Public Shares. If, after the Effective Time, Certificates certificates that immediately prior to the Effective Time represented Public Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article ISection 1.03 hereof, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange -------- Agent") shall act as exchange agent in effecting the exchange of the Merger ----- Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub ------------ shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after At the First Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable Parent (on behalf of Merger Sub) shall issue to the Company Sole Stockholder the shares of Parent Common Stock (the "Exchange Agent"which shall be in non-certificated book entry form unless a physical certificate is requested) shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment issuable pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to 2.01 in exchange the Merger Consideration for Certificates received by the Exchange Agentoutstanding shares of Company Common Stock.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the The Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed issued in accordance with the instructions thereto, the holder terms of such Certificate this Article II upon conversion of any shares of Company Common Stock shall be entitled deemed to receive have been issued in exchange therefor an amount equal to the Merger Consideration multiplied by the number full satisfaction of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition rights pertaining to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason shares of the payment of such Merger Consideration to 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 applicableCompany Common Stock. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the First Effective Time, Time there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesshares of Company Common Stock that were outstanding immediately prior to the First Effective Time. If, after the First Effective Time, Certificates any certificates formerly representing shares of Company Common Stock are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article III.
(c) Parent (on behalf of Merger Sub) shall be entitled to deduct and withhold from the consideration otherwise payable in respect of the Transactions such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Code, subject or under any provision of state, federal, provincial, territorial, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to applicable law the appropriate taxing authority, such amounts shall be treated as paid to the Persons otherwise entitled to such amounts. If the amount withheld and paid over is in respect of consideration other than cash, the case Surviving Corporation or other payor will be treated as though it withheld an appropriate amount of Dissenting Sharesthe type of consideration otherwise payable to the Person entitled to such amount, sold such consideration on behalf of such Person for an amount of cash equal to the fair market value of such consideration at the time of such deemed sale and paid such cash proceeds to the appropriate taxing authority.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent shall act as exchange agent (the "Exchange Agent") shall act as exchange agent in -------------- effecting the exchange of the Merger Consideration Price for certificates representing which prior to the Effective Time represented Shares entitled (and associated Rights) and which as of the Effective Time represent the right to payment pursuant to Section 1.6 receive the Merger Price (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall ------------- mail to each record holder of Certificates 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration thereforPrice therefor in a form approved by Parent and the Company. At or prior to the Effective Time, the Purchaser shall deposit in trust with the Exchange Agent immediately available funds in an amount sufficient to pay the Merger Price for all such Shares (and associated Rights) to the Company's stockholders as contemplated by this Section 2.3. Upon the surrender of each Certificate, together with such letter Certificate and the issuance and delivery by the Exchange Agent of transmittal duly executed the Merger Price for the Shares (and completed associated Rights) represented thereby in accordance with the instructions theretoexchange therefor, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration Price for the Shares (and associated Rights) represented thereby, without any interest thereon. Upon the surrender and exchange of such an outstanding Certificate, the holder thereof shall receive the Merger Price multiplied by the number of Shares (and associated Rights) represented by such Certificate. No , without any interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatesthereon. If any Merger Consideration cash is to be paid to a Person name other than the Person that in whose name which the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such payment or exchange that the Person 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 Merger Consideration cash to a Person name other than that of the registered holder of the Certificate surrendered, or such Person 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 of Shares Certificates for any part of the Merger Consideration delivered Price payments made to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cb) Promptly following the date which is 180 days sixth month after the Effective Time, the Exchange Agent shall return to the Surviving Corporation all cash relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Price for such Shares represented by such Certificate(and associated Rights), 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.
(d) After Corporation under applicable law. At and after the Effective Time, 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 (and associated Rights) or to perfect their right of appraisal with respect to their Shares (and associated Rights) pursuant to the applicable provisions of the DGCL and Section 2.4 below, and there shall be no transfers on the stock transfer books of the Company or the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented Shares (and associated Rights) that were outstanding immediately prior to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesMerger.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp /De/)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable Prior to the Company Closing Date, Purchaser shall appoint an agent with the Company’s prior approval (which approval shall not be unreasonably withheld, conditioned or delayed) (the "Exchange “Paying Agent"”) shall act as exchange agent in effecting for the exchange purpose of exchanging for the Per Share Merger Consideration for (i) certificates representing Shares entitled (the “Certificates”) (or affidavits of loss in lieu of the Certificates as provided in Section 3.02(g)) or (ii) uncertificated Shares (the “Uncertificated Shares”). Prior to payment or on the Closing Date, Purchaser shall, or shall cause MidFirst to, make available to the Paying Agent immediately available funds necessary for the aggregate Per Share Merger Consideration to be paid in respect of the Certificates, the Uncertificated Shares and the Company Restricted Shares pursuant to this Article III, other than any Per Share Merger Consideration Purchaser elects to have paid by the Payroll Processor pursuant to Section 1.6 3.02(b) (the "Certificates"“Exchange Fund”). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, Purchaser shall send, or shall cause the Exchange Paying Agent shall mail to send, to each record holder of Certificates Shares that have been converted into the right to receive the Per Share Merger Consideration at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.02(g)) or transfer of the Uncertificated Shares to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving such exchange.
(b) Each holder of Shares that have been converted into the right to receive the Per Share Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal receive, upon surrender to the Paying Agent of a Certificate (or affidavits of loss in lieu of the Certificates as provided in Section 3.02(g)), together with a properly completed letter of transmittal, or receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Per Share Merger Consideration multiplied by the number of Shares payable for each Share formerly represented by such Certificate, and such a Certificate shall be canceledor for each Uncertificated Share. Until so surrendered and exchangedor transferred, as the case may be, each such Certificate or Uncertificated Share shall represent solely after the Effective Time for all purposes only the right to receive an amount equal the Per Share Merger Consideration. To the extent reasonably practicable, Purchaser shall have the option to fund the Per Share Merger Consideration to be paid with respect to certain Shares that previously represented Company Restricted Shares by funding the necessary amounts to the payroll processor of the Company or Purchaser or any of their respective Affiliates (the “Payroll Processor”) for payment by the Payroll Processor of the Per Share Merger Consideration multiplied by to the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender applicable holders, subject to Section 3.03.
(c) If any portion of the Certificates. If any Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate surrendered in exchange therefor or the transferred Uncertificated Share is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such exchange payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the payment as a result of such Merger Consideration payment to a Person other than the registered holder of the such Certificate surrendered, or such Person shall Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such tax 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationpayable.
(d) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Paying Agent, they shall be canceled cancelled and exchanged for the amount in immediately available funds to which the holder of the Certificate is entitled pursuant to, and in accordance with the procedures set forth in, this Article III.
(e) Any portion of the Exchange Fund made available to the Paying Agent pursuant to Section 3.02(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Purchaser or one of its Affiliates, upon demand, and any such holder who has not exchanged its Shares for the Per Share Merger Consideration in accordance with this Section 3.02 prior to that time shall thereafter look only to Purchaser for payment of the Per Share Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, neither Purchaser nor any of its Affiliates shall be liable to any holder of Shares for any amounts paid to a public official pursuant to applicable Merger Considerationabandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of Purchaser free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Exchange Fund made available to the Paying Agent pursuant to Section 3.02(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Purchaser upon demand.
(g) 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 Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as provided indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent (or Payroll Processor) shall pay, in exchange for such lost, stolen or destroyed Certificate, the Per Share Merger Consideration to be paid in respect of the Shares formerly represented by such Certificate, as contemplated by this Article I, subject to applicable law in the case of Dissenting SharesIII.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company Prior to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange receiving any portion of the Merger Consideration for Consideration, each holder of record of a certificate or certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that immediately prior to the Effective TimeTime represented issued and outstanding shares of Company Stock (the “Certificates”), FKW Sub shall deposit with have delivered to the Exchange Agent (i) a properly completed and duly executed letter of transmittal (a “Letter of Transmittal”) and (ii) the amount necessary to enable Certificates held of record by such holder. Such Letter of Transmittal shall have been previously mailed by the Exchange Agent to exchange such holder along with instructions thereto and a notice to the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify effect that delivery of the Certificates shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving . Such Letter of Transmittal shall also bind such holder to the Merger Consideration thereforprovisions of Section 11.14 of this Agreement. Upon the surrender of each Certificatea Certificate to the Company, together with such letter Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by consideration into which the number of Shares shares represented by such CertificateCertificate shall have been converted pursuant to Section 3.5(a), and such the Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely If the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender portion of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration exchange to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the reasonable satisfaction of the Exchange Agent Company that such tax Tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 3.6, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed as of the Effective Time of the Merger to a holder represent only the right to receive, upon surrender of Shares for any Merger Consideration delivered to a public official such Certificate in accordance with this Section 3.6(a), the consideration into which the shares represented by such Certificate shall have been converted pursuant to applicable abandoned property, escheat and similar lawsSection 3.5(a).
(cb) Promptly following All Merger Consideration paid upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited surrender of Certificates in accordance with the Exchange Agent that remain unclaimed by holders terms of Certificates this Article III shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares represented by such Certificate, 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.
(d) After the Effective Time, Certificates and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares that were issued and outstanding immediately prior to the Effective Time of the Merger. If, after the Effective TimeTime of the Merger, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable portion of the Merger Consideration, Consideration as provided in this Article IIII.
(c) Any portion of the Merger Consideration deposited with the Exchange Agent that remains unclaimed by the Holders six (6) months after the Effective Time shall be returned to the Company, subject upon demand, and the Holders shall thereafter look only to the Company for such payment, without any interest thereon. Further, none of the Purchaser, Merger Subsidiary or the Surviving Corporation shall be liable to any former Holder for any portion of the Merger Consideration or interest thereon properly delivered to a public official pursuant to any applicable law abandoned property, escheat or similar Law.
(d) The Exchange Agent, the Purchaser, the Company or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from consideration otherwise payable pursuant to this Agreement to any Holder such amounts as are required to be deducted and withheld 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, (i) such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of which such deduction and withholding was made, and (ii) the case Exchange Agent, the Purchaser, the Company or the Surviving Corporation (as appropriate) shall provide to such Holder written notice of Dissenting Sharesthe amounts so deducted or withheld.
Appears in 1 contract
Exchange of Certificates. (a) From and As promptly as practicable after the Effective Time, a Parent shall deposit, or shall cause to be deposited, with W▇▇▇▇ Fargo Bank, N.A. or another bank or trust company to be designated by FKW Sub Parent and reasonably acceptable satisfactory to the Company (the "“Exchange Agent") shall act as exchange agent in effecting ”), for the exchange benefit of the holders of Shares, for exchange in accordance with this Section 2.1 through the Exchange Agent, an amount of cash sufficient to deliver to holders of Shares the aggregate Merger Consideration for certificates representing Shares to which they are entitled to payment pursuant to Section 1.6 (the "Certificates")1.5. At or prior to the Effective Time, FKW Sub shall deposit Any cash deposited with the Exchange Agent shall hereinafter be referred to as the amount necessary “Exchange Fund.” Pursuant to enable irrevocable instructions, the Exchange Agent to exchange shall promptly deliver the Merger Consideration for Certificates received by from the Exchange AgentFund to the former Company stockholders who are entitled thereto pursuant to Section 1.5.
(b) Promptly As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Agent shall to mail to each record holder of Certificates record of a certificate formerly representing Shares (a “Certificate”), other than Parent or Merger Sub or any wholly owned Subsidiary of Parent or Merger Sub, (i) a letter of transmittal (which that shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent, which letter shall be in customary form and (ii) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatesuch Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Exchange Agent, together with such letter of transmittal transmittal, duly executed 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 an amount equal to the Merger Consideration multiplied by that such holder is entitled to receive pursuant to Section 1.5 in respect of the number of Shares formerly represented by such Certificate, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchangedNo interest will be paid or will accrue on any cash payable pursuant to Section 1.5. In the event of a transfer of ownership of Shares which is not registered in the transfer records of the Company, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of may be issued and paid with respect to such Shares represented by to such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name transferee if the Certificate surrendered formerly representing such transferred Shares is presented to the Exchange Agent in exchange therefor is registeredaccordance with this Section 2.1(b), such Certificate shall be accompanied by all documents required to evidence and effect such transfer, transfer and it evidence that any applicable stock transfer Taxes have been paid.
(c) The Merger Consideration delivered upon surrender of Certificates in accordance with the terms hereof shall be a condition deemed to such exchange that the Person requesting such exchange shall pay have been paid in full satisfaction of all rights pertaining to the Exchange Agent any transfer or other taxes required Shares formerly represented by reason of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction Certificates.
(d) Any portion of the Exchange Agent that Fund which remains undistributed to the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and, from and after such tax has been paid or is delivery to Parent, any holders of Shares who have not applicable. Notwithstanding theretofore complied with this Section 2.1 shall thereafter look only to Parent for the foregoingMerger Consideration payable in respect of such Shares.
(e) Neither Parent, neither Merger Sub, the Surviving Corporation, the Exchange Agent nor any party hereto the Company shall be liable to a any holder of Shares for any Merger Consideration cash from the Exchange Fund delivered to a public official pursuant to applicable any abandoned property, escheat and or similar lawsLaw.
(cf) Promptly following If any Certificate shall have been lost, stolen or destroyed, upon the date which is 180 days after making of an affidavit of that fact by the Effective TimePerson 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 the Surviving Corporation with respect to such Certificate, the Exchange Agent's duties Agent shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive pay in exchange therefor an amount equal to for such lost, stolen or destroyed Certificate the Merger Consideration multiplied by payable in respect of the number of Shares formerly represented by such Certificate, 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.
(dg) After Parent or the Effective Time, there Exchange Agent shall be no transfers on entitled to deduct and withhold from the stock transfer books consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as Parent or the Surviving Corporation of Exchange Agent are required to deduct and withhold under the Code, or any Shares. IfTax Law, after the Effective Time, Certificates are presented with respect to the Surviving Corporation making of such payment. To the extent that amounts are so withheld by Parent or the Exchange Agent, they such withheld amounts shall be canceled treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of whom such deduction and exchanged for withholding was made by Parent or the applicable Merger ConsiderationExchange Agent.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as provided directed by Parent, on a daily basis; provided, however, that such investments shall be in this Article Iobligations of or guaranteed by the United States of America, subject in commercial paper obligations rated A-1 or P-1 or better by M▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available). Any interest and other income resulting from such investments shall be paid to applicable law Parent upon termination of the Exchange Fund pursuant to Section 2.1(d). In the event the cash in the case Exchange Fund shall be insufficient to fully satisfy all of Dissenting Sharesthe 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
Exchange of Certificates. (a) From At or as soon as practicable after the Effective Time, Parent will deliver the aggregate Per Share Consideration entitled to be received at the Effective Time under Section 1.5(a)(ii)(1) and Section 1.5(a)(ii)(2) by each holder of Company Common Stock (each a "Company Shareholder") who has delivered his or her Company Stock Certificate to Parent at or prior to the Closing. 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 the Per Share Consideration upon such surrender. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a bank or trust company to be designated by FKW Sub and reasonably acceptable condition precedent to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange issuance of the Merger Per Share 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 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. No interest will accrue or be paid to the holder of any outstanding Company Common Stock for the time between the Effective Time and the date that such Company Common Stock is converted into Per Share Consideration for certificates representing Shares entitled to payment pursuant to this Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent1.7.
(b) Promptly No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time, Time shall be paid to the Exchange Agent shall mail to each record holder of Certificates a letter any unsurrendered Company Stock Certificate with respect to the shares of transmittal (which shall specify that delivery Parent Common Stock represented thereby, and no cash payment in lieu of any fractional share shall be effectedpaid to any such holder, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with until such letter of transmittal duly executed and completed holder surrenders such Company Stock Certificate in accordance with the instructions thereto, the this Section 1.7 (at which time such holder of such Certificate shall be entitled to receive all such dividends and distributions and such cash payment).
(c) No fractional shares of Parent Common Stock shall be issued in exchange therefor an connection with the Merger, and no certificates for any such fractional shares shall be issued. In lieu of such fractional shares, any holder of capital stock of the Company who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, upon surrender of such holder's Company Stock Certificate(s), be paid in cash the dollar amount equal (rounded to the Merger Consideration multiplied nearest whole cent), without interest, determined by multiplying such fraction by the number of Shares represented by such Certificate, Designated Parent Stock Price.
(d) Parent and such Certificate the Surviving Corporation shall be canceledentitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of Company Common Stock pursuant to 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, local or foreign tax law. Until To the extent such amounts are so surrendered and exchangeddeducted or withheld, each such Certificate amounts shall represent solely the right to receive an amount equal be treated for all purposes under this Agreement as having been paid to the Merger Consideration multiplied by Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 Surviving Corporation shall be liable to a any holder or former holder of Shares Company Common Stock for any Merger Consideration shares of Parent Common Stock (or dividends or distributions with respect thereto), or for any cash amounts, delivered to a any public official pursuant to any applicable abandoned property, escheat and or similar lawslaw.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Clarent Corp/Ca)
Exchange of Certificates. (a) From and after the Effective Time, a bank each holder of an outstanding certificate that immediately prior to the Effective Time represented Shares shall be entitled to receive in exchange therefor, upon surrender thereof to Chase Mellon Shareholder Se▇▇▇▇▇▇, ▇▇▇ris Bank, or trust company such other ▇▇▇▇▇▇ge agent as is reasonably satisfactory to be designated by FKW Sub Parent and reasonably acceptable to the Company (the "Exchange Agent") ), the Merger Consideration to which such holder is entitled pursuant to Section 4.1(a). Notwithstanding any other provision of this Agreement, without regard to when such certificates representing Shares are surrendered for exchange as provided herein, no interest shall act as exchange agent in effecting the exchange be paid on any payment of the Merger Consideration.
(b) If any Merger Consideration is to be issued in a name other than that in which the certificate for certificates representing Shares entitled surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of such Merger Consideration in a name other than that of the registered holder of the certificate surrendered, or shall establish to payment pursuant to Section 1.6 the satisfaction of Parent that such tax has been paid or is not applicable.
(the "Certificates"). At or prior to c) Promptly at the Effective Time, FKW Sub Parent shall deposit with make available to the Exchange Agent the amount cash in immediately available United States funds and Parent Common Stock necessary to enable the Exchange Agent to exchange for payment of all the Merger Consideration for Certificates received by the Exchange AgentConsideration.
(bd) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "Company Certificates") (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Company Certificates in exchange for the applicable Merger Consideration. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other documents as the instructions theretoExchange Agent shall reasonably require, the holder of such Certificate Company Certificates shall be entitled to receive in exchange therefor an amount equal the applicable Merger Consideration into which the Shares theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the Merger Consideration multiplied by the number provisions of Shares represented by such CertificateSection 4.1(a), and such Certificate the Company Certificates so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(e) Promptly following the date which is nine months after the Effective Date, the Exchange Agent shall deliver to Parent all cash, certificates 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 Merger Consideration, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of Company Common Stock for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(cf) Promptly following In the date which is 180 days after event any Company Certificate shall have been lost, stolen or destroyed, upon the Effective Timemaking of an affidavit of that fact by the person claiming such Company Certificate to be lost, the Exchange Agent's duties shall terminatestolen or destroyed, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demandshall issue in exchange for such lost, stolen or destroyed Company Certificate the Merger Consideration deliverable in respect thereof determined in accordance with this Article IV. ThereafterWhen authorizing such payment in exchange therefor, each holder the Board of a Certificate may surrender such Certificate to Directors of the Surviving Corporation along with the applicable letter of transmittal may, in its discretion and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal as a condition precedent to the Merger Consideration multiplied by issuance thereof, require the number owner of Shares represented by such Certificatelost, without stolen or destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any interest thereon, but shall have no greater rights that may be made against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented with respect to the Surviving Corporation Company Certificate alleged to have been lost, stolen or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Sharesdestroyed.
Appears in 1 contract
Exchange of Certificates. (a) From and after At least five Business Days prior to the Effective Time, a Acquisition Subsidiary shall designate the Company's registrar and transfer agent, or such other bank or trust company as is reasonably satisfactory to the Company, to act as paying agent for the holders of shares of Company Common Stock in connection with the Merger, pursuant to an agreement providing for the matters set forth in this Section 3.2 and such other matters as may be designated by FKW Sub appropriate and the terms of which are reasonably acceptable satisfactory to the Company (the "Exchange Paying Agent") shall act as exchange agent in effecting ), for the exchange payment of the Merger Consideration Consideration. When and as needed, Parent and Acquisition Subsidiary will cause to be deposited in trust with the Paying Agent for certificates representing Shares entitled the benefit of holders of shares of Company Common Stock, as applicable, the amount of cash necessary to payment pursuant complete the payments contemplated by this Section 3.2 on a timely basis (the "Payment Fund"). Any interest income from investment of such Payment Fund will be payable to Section 1.6 Parent. If so directed by Parent, the Paying Agent may invest such Payment Fund in overnight cash equivalent investments. At the Effective Time, the Surviving Corporation will instruct the Paying Agent to promptly, and in any event not later than three Business Days following the Effective Time, mail to each holder of record of Common Stock Certificates (the "Certificates"). At or prior , whose shares were converted pursuant to Section 3.1 into the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary right to enable the Exchange Agent to exchange receive the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the such Certificates shall pass, only upon proper delivery of the such Certificates to the Exchange AgentPaying Agent and shall be in such form and have such other provisions as the Company and Acquisition Subsidiary may reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by the Company, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number for each share of Shares Company Common Stock formerly represented by such Certificate, to be mailed within three Business Days of receipt thereof, and such the Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateforthwith be cancelled. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender If payment of the Certificates. If any Merger Consideration is to be paid made to a Person person or stock certificates are to be issued to a person other than the Person person in whose name the surrendered Certificate surrendered in exchange therefor is registered, such Certificate it shall be a condition of payment or issuance that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such payment shall have paid any transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the Certificate surrendered or shall have established to the satisfaction of the Surviving Corporation that such tax either has been paid or is not applicable. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, the Merger Consideration and any dividends or other distributions to which such holder is entitled, may be issued with respect to such Company Common Stock to such a transferee if the Certificates representing such Company Common Stock are presented to the Paying Agent (or if lost, stolen or destroyed, the procedures set forth in Section 3.2(d) are complied with), accompanied by all documents required to evidence and effect such transfertransfer and to evidence that any applicable stock transfer taxes have been paid.
(b) Until surrendered as contemplated by this Section 3.2, and it each Certificate (other than Certificates representing Company Common Stock held by Parent, Acquisition Subsidiary, or any Subsidiary of Parent or Acquisition Subsidiary, or Dissenting Shares) shall be a condition deemed at any time after the Effective Time to such exchange that represent only the Person requesting such exchange shall pay right to receive the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person as contemplated by this Section 3.2. No interest shall establish to the satisfaction of the Exchange Agent that such tax has been be paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for will accrue on any Merger Consideration delivered payable to a public official holders of Certificates pursuant to applicable abandoned property, escheat and similar lawsthe provisions of this Article III.
(c) Promptly following Any portion of the date Payment Fund which is 180 days remains unclaimed by the former stockholders of the Company for one year after the Effective TimeTime shall be delivered to the Surviving Corporation, upon demand of the Exchange Agent's duties shall terminateSurviving Corporation, and any funds deposited with all former stockholders of the Exchange Agent that remain unclaimed by holders of Certificates Company shall be paid thereafter look only to the Surviving Corporation for payment of their claims for the Merger Consideration for their shares.
(d) In the event any Certificate shall have been lost, stolen or destroyed, upon demand. Thereafter, each holder the making of a Certificate may surrender an affidavit of that fact by the Person (as defined in Section 9.5) claiming such Certificate to be lost, stolen or destroyed, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article III, provided that the Person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation along with a bond in such sum as the applicable letter of transmittal and (subject Surviving Corporation may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without it against any interest thereon, but shall have no greater rights claim that may be made against the Surviving Corporation than may be accorded with respect to general creditors of the Surviving CorporationCertificate claimed to have been lost, stolen or destroyed.
(de) After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesshares of Company Common Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentCorporation, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, Consideration as provided in this Article IIII, subject to applicable law in Section 262 of the case of Dissenting SharesDGCL.
Appears in 1 contract
Exchange of Certificates. Escrow (a) From and after Prior to the Effective Time, Purchaser shall designate a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Linfinity to act as paying agent (the "Exchange Paying Agent") shall act as exchange agent in effecting the exchange for the Preferred Price Per Share of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Preferred Certificates"). At or ) that, prior to the Effective Time, FKW Sub shall deposit with represented Preferred Stock, the Exchange Agent Common Price Per Share of Certificates (the amount necessary "Common Certificates") that, prior to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal (which shall specify that delivery shall be effectedrepresented Common Stock, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions Option Price Per Share for use in surrendering Certificates and receiving the Merger Consideration thereforOption Cancellation Certificates. Upon the surrender of each CertificatePreferred Certificate formerly representing Preferred Stock, together with such a properly completed letter of transmittal duly executed and completed in accordance with transmittal, the instructions thereto, Paying Agent shall pay the holder of such Preferred Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration Preferred Price Per Share multiplied by the number of Shares shares of Preferred Stock formerly represented by each such Preferred Certificate, in exchange therefor, and each such Preferred Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Preferred Certificate (other than Preferred Certificates representing Dissenting Shares) shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such CertificatePreferred Price Per Share. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the CertificatesPreferred Price Per Share. If the Preferred Price Per Share (or any Merger Consideration portion thereof) is to be paid delivered to a Person any person other than the Person person in whose name the Preferred Certificate formerly representing shares of Preferred Stock surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Preferred Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration the Preferred Price Per Share to a Person person other than the registered holder of the Preferred Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Paying Agent that such tax Tax has been paid or is not applicable. Notwithstanding Upon the foregoingsurrender of each Common Certificate formerly representing shares of Common Stock, neither together with a properly completed letter of transmittal, the Exchange Paying Agent nor any party hereto shall be liable to a pay the holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following such Common Certificate the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration Common Price Per Share multiplied by the number of Shares shares of Common Stock formerly represented by each such Common Certificate, without in exchange therefor, and each such Common Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such Common Certificate (other than Common Certificates representing Dissenting Shares) shall represent solely the right to receive the Common Price Per Share. No interest shall be paid or accrue on the Common Price Per Share. If the Common Price Per Share (or any interest thereonportion thereof) is to be delivered to any person other than the person in whose name the Common Certificate formerly representing shares of Common Stock surrendered in exchange therefor is registered, but it shall have no greater rights against be a condition to such exchange that the Surviving Corporation than may Common Certificate so surrendered shall be accorded properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to general creditors the Paying Agent any transfer or other Taxes required by reason of the Surviving Corporation.
(d) After payment of the Effective TimeCommon Price Per Share to a person other than the registered holder of the Common Certificate surrendered, there or shall establish to the satisfaction of the Paying Agent that such Tax has been paid or is not applicable. Upon the surrender of each Option Cancellation Certificate, together with a properly completed letter of transmittal, the Paying Agent shall pay the holder of such Option Cancellation Certificate the Option Price Per Share multiplied by the number of shares of Common Stock formerly represented by each such Option Cancellation Certificate, in exchange therefor. Until so surrendered and exchanged, each such Option Cancellation Certificate shall represent solely the right to receive the Option Price Per Share. No interest shall be no transfers paid or accrued on the stock Option Price Per Share. If the Option Price Per Share (or any portion thereof) is to be delivered to any person other than the person in whose name the Option Cancellation Certificate surrendered in exchange therefor is registered, it shall be a condition to such exchange that the Option Cancellation Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer books and that the person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of the Surviving Corporation payment of any Shares. Ifthe Option Price Per Share to a person other than the registered holder of the Option Cancellation Certificate surrendered, after the Effective Time, Certificates are presented or shall establish to the Surviving Corporation satisfaction of the Paying Agent that such Tax has been paid or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Sharesis not applicable.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Microsemi Corp)
Exchange of Certificates. (a) From and after the Effective Time--NFB, a bank or trust company to be designated by FKW Sub and reasonably acceptable to Nu Skin Enterprises shall effect the Company payment of the NFB Merger Consideration upon surrender of certificates (the "Exchange AgentNFB Certificates") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that, prior to the Effective Time--NFB, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder represented shares of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration thereforNFB Common. Upon the surrender of each Certificatesuch NFB Certificate formerly representing shares of NFB Common, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, Nu Skin Enterprises shall pay the holder of such NFB Certificate shall the NFB Merger Consideration to be entitled paid to receive such holder pursuant to Section 2.4.7 above in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificatetherefor, and such NFB Certificate shall forthwith be canceled. Until so surrendered and exchanged, each such NFB Certificate (other than NFB Certificates representing NFB Dissenting Shares or shares of NFB Common held by NFB) shall represent solely the right to receive an amount equal to the NFB Merger Consideration multiplied by the number of Shares represented by into which such Certificatecertificate may be exchanged pursuant to Section 2.4.7 above. No interest shall be paid or shall accrue on the NFB Merger Consideration. If the NFB Merger Consideration payable upon the surrender of the Certificates. If (or any Merger Consideration portion thereof) is to be paid delivered to a any Person other than the Person in whose name the NFB Certificate formerly representing shares of NFB Common surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the NFB Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent Nu Skin Enterprises any transfer or other taxes required by reason of the payment of such the NFB Merger Consideration to a Person other than the registered holder of the NFB Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Nu Skin Enterprises 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after Prior to the Effective Time, a bank or trust company to be designated by FKW Sub and Parent shall designate an agent reasonably acceptable satisfactory to the Company to act as Paying Agent in connection with the Merger (the "Exchange Paying Agent") shall act as exchange agent in for purposes of effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or which, prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary represented Shares and which are entitled to enable the Exchange Agent to exchange receive the Merger Consideration pursuant to Section 2.1. On the Closing Date, Parent and Acquisition will provide the Paying Agent in trust for Certificates received the benefit of the holders of Shares with immediately available funds in an aggregate amount ("Payment Fund") equal to the aggregate Merger Consideration to be paid to the holders of Shares pursuant to Section 2.1. The Payment Fund shall be invested by the Exchange Paying Agent, as directed by Parent, in direct obligations of the United States of America, 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.
(b) Promptly As promptly as practicable after the Effective Time, the Exchange Paying Agent shall mail to each record holder holder, as of Certificates the Effective Time, of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates") a form of letter of transmittal that is reasonably acceptable to the Company (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering effecting the surrender of the Certificates and receiving the Merger Consideration for payment therefor. Upon surrender to the surrender Paying Agent of each a Certificate, together with such letter of transmittal duly executed executed, and completed in accordance with the instructions theretoany other required documents, the holder of such Certificate shall receive promptly in exchange therefor the Merger Consideration for each Share formerly evidenced thereby, and such Certificate shall forthwith be cancelled. No interest will be paid or accrued on the cash payable upon the surrender of the Certificates. If payment is to be made to a person other than the person in whose name the surrendered Certificate is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. One Hundred Eighty (180) days after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any cash (including any interest received with respect thereto) which it has made available to the Paying Agent and which has not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as general unsecured creditors thereof with respect to the cash payable upon due surrender of their Certificates. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the distribution of the Merger Consideration for Shares. From and after the Effective Time, until surrendered in accordance with the provisions of this Section 2.2(b), each Certificate (other than Certificates which represented Shares held by the Company, any direct or indirect wholly-owned Subsidiary of the Company, Parent, Acquisition or any direct or indirect wholly-owned Subsidiary of Parent or Acquisition and other than Dissenting Shares (as hereinafter defined in Section 2.4)) shall represent for all purposes only the right to receive in exchange therefor an amount consideration equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented evidenced by such Certificate, without any interest thereon. From and after the Effective Time, but holders of Certificates shall have no greater right to vote or to receive any dividends or other distributions with respect to any Shares which were theretofore represented by such Certificates, other than any dividends or other distributions payable to holders of record as of a date prior to the Effective Time, and shall have no other rights against the Surviving Corporation other than may be accorded to general creditors of the Surviving Corporationas provided herein or by applicable law.
(dc) After From and after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesthe Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation Paying Agent or the Exchange AgentSurviving Corporation, they shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided Consideration in accordance with the procedures set forth in this Article III.
(d) The Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, subject as amended (the "Code"). To the extent that amounts are so withheld by the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to applicable law the holder of the Certificates in respect of which such deduction and withholding was made by the case Paying Agent.
(e) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of Dissenting Sharesan affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article II, provided that the person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to it against any claim that may be made against the Surviving Corporation with respect to the Certificate claimed to have been lost, stolen or destroyed.
Appears in 1 contract
Exchange of Certificates. (a) From and after At the Effective TimeClosing, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") Buyer shall act as exchange agent in effecting the exchange of the Net Merger Consideration Per Share for certificates or satisfactory lost certificate affidavits in lieu thereof (collectively, the "Certificates") representing Shares entitled to payment pursuant to Section 1.6 3.01 (the "Certificates"including any Dissenting Shares which may be surrendered as no longer dissenting). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance Tax or other information as may be required to enable Buyer, Merger Sub, or the Surviving Corporation to comply with the instructions theretoany withholding or reporting obligations under applicable law, the holder of such Certificate Stockholder thereof shall be entitled to receive in exchange therefor an amount equal to the Net Merger Consideration Per Share multiplied by the number of Shares represented by such Certificate, payable as provided in Section 3.02, and such Certificate shall be canceledcancelled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Net Merger Consideration Per Share multiplied by the number of Shares represented by such CertificateCertificate and payable as provided in Section 3.02. No interest shall be paid or accrue accrued on the Net Merger Consideration payable Per Share upon the surrender of the CertificatesCertificate. If any Net Merger Consideration is to be paid to a Person any Entity other than the Person Entity in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person Entity requesting such exchange shall pay to the Exchange Agent Buyer any transfer or other taxes Taxes required by reason of the payment of such Net Merger Consideration to a Person any Entity other than that of the registered holder of the Certificate surrendered, or such Person Entity shall establish to the satisfaction of the Exchange Agent Buyer that such tax Tax has been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent Buyer nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each Each holder of a Certificate not tendered for exchange at the Closing may surrender such the Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Net Merger Consideration Per Share multiplied by the number of Shares represented by such Certificate, payable as provided in Section 3.02, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general unsecured creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers of any Shares on the stock transfer books of the Surviving Corporation of any SharesCorporation. If, after the Effective Time, If Certificates are presented to the Surviving Corporation or Buyer after the Exchange AgentClosing, they shall be canceled cancelled and exchanged for the applicable Net Merger ConsiderationConsideration Per Share, payable as provided in this Article I, subject to applicable law in the case of Dissenting SharesAgreement.
Appears in 1 contract
Sources: Merger Agreement (TBC Corp)
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company ChaseMellon Shareholder Services, L.L.C. (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares shares of Class A Common Stock entitled to payment pursuant to Section 1.6 2.1(a)(i) (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal in customary form (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificate, together with such letter of transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Certificate shall be unconditionally entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares of Class A Common Stock formerly represented by such Certificate, and such Certificate shall be canceled. Until so surrendered and exchangedsurrendered, each such Certificate shall represent solely the right to receive receive, upon compliance with the conditions set forth in this subsection 2.2(b), an amount equal to the Merger Consideration multiplied by the number of Shares shares of Class A Common Stock formerly represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person person (the "Payee") other than the Person person in whose name the Certificate surrendered in exchange therefor is registeredregistered (the "Record Holder"), such Certificate shall be accompanied by all documents required to evidence and effect the transfer of the rights represented by such transferCertificate from the Record Holder to the Payee, and it shall be a condition to such exchange that the Person person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrenderedPayee, or that such Person person shall establish to the reasonable satisfaction of the Exchange Agent that such tax has been paid or is not applicable. Notwithstanding the foregoing, to the fullest extent permitted by law, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares shares of Class A Common Stock for any Merger Consideration properly delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 360 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares of Class A Common Stock formerly represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesshares of Common Stock (as defined in Section 3.2). If, after the Effective Time, Certificates (other than Certificates relating to the Control Shares) are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article Iherein, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (a) From and after As of the Effective Time, a bank Parent shall deposit with ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services, LLC, or trust company to such other agent or agents as may be designated appointed by FKW Sub Parent and reasonably acceptable to the Company Acquisition (the "Exchange Agent") shall act as exchange agent in effecting ), for the exchange benefit of the holders of Shares, for exchange in accordance with this Article 2, through the Exchange Agent an amount of cash equal to the aggregate Merger Consideration for certificates representing Shares entitled to payment payable pursuant to Section 1.6 2.6 (such amount of cash is hereinafter referred to as the "CertificatesExchange Fund"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to in exchange the Merger Consideration for Certificates received by the Exchange Agentoutstanding Shares.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of a certificate or certificates which immediately prior to the Effective Time represented outstanding Shares (the "Certificates") whose shares were converted into the right to receive Merger Consideration pursuant to Section 2.6: (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 proper delivery of the Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for Merger Consideration. Upon surrender of a Certificate to the Exchange Agent, together with such letter of transmittal transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to a check representing the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, and such the Certificate so surrendered shall forthwith be canceled. Until so surrendered and exchangedIn the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, each a check representing the proper amount of Merger Consideration may be issued to a transferee if the Certificate representing such Certificate shall represent solely the right to receive an amount equal Shares is presented to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be Exchange Agent accompanied by all documents required to evidence and effect such transfertransfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.7, and it each Certificate shall be a condition deemed at any time after the Effective Time to represent only the right to receive upon such exchange surrender the Merger Consideration.
(c) In the event that the Person requesting such exchange any Certificate for Shares shall pay to have been lost, stolen or destroyed, the Exchange Agent any transfer shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Merger Consideration, as may be required pursuant to this Agreement; provided, however, that Parent or other taxes required by reason the Exchange Agent, may, in its discretion, require the delivery of the payment of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction suitable bond and/or indemnity.
(d) Any portion of the Exchange Agent that such tax has been paid or is Fund which remains undistributed to the shareholders of the Company for six months after the Effective Time shall be delivered to Parent, upon demand, and any shareholders of the Company who have not applicable. Notwithstanding theretofore complied with this Article 2 shall thereafter look only to Parent as general creditors for payment of their claims for Merger Consideration.
(e) Neither Parent nor the foregoing, neither the Exchange Agent nor any party hereto Company shall be liable to a any holder of Shares for any Merger Consideration amount of cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat and or similar lawslaw.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Shares.
Appears in 1 contract
Exchange of Certificates. (aA) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange each holder of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or an outstanding certificate that immediately prior to the Effective TimeTime represented Shares shall be entitled to receive in exchange therefor, FKW Sub upon surrender thereof to the Exchange Agent, the Merger Consideration to which such holder is entitled pursuant to this Plan of Merger. Notwithstanding any other provision of this Plan of Merger, without regard to when such certificates representing Shares are surrendered for exchange as provided herein, no interest shall deposit with be paid on any payment of the Merger Consideration.
(B) If any Merger Consideration is to be issued in a name other than that in which the certificate for Shares surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall (i) deliver the certificate representing such Shares to the Exchange Agent properly endorsed or accompanied by appropriate stock powers and otherwise in proper form for transfer and (ii) pay any transfer or other taxes required by reason of the amount necessary to enable the Exchange Agent to exchange the issuance of such Merger Consideration for Certificates received by in a name other than that of the Exchange Agentregistered holder of the certificate surrendered, or shall establish to the satisfaction of Ironbridge that such tax has been paid or is not applicable.
(bC) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (the "Company Certificates") (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper actual delivery of the Company Certificates to the Exchange Agent) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Company Certificates in exchange for the applicable Merger Consideration. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other documents as the instructions theretoExchange Agent shall reasonably require, the holder of such Certificate Company Certificates shall be entitled to receive in exchange therefor an amount equal the applicable Merger Consideration into which the Shares theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the Merger Consideration multiplied by the number provisions of Shares represented by such Certificatethis Plan of Merger, and such Certificate the Company Certificates so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(D) Promptly following the date which is nine months after the Effective Date, the Exchange Agent shall deliver to Ironbridge all cash, certificates 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 Merger Consideration, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Ironbridge, Purchaser, the Company or the Surviving Corporation shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(cE) Promptly following In the date which is 180 days after event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Merger Consideration deliverable in respect thereof determined in accordance with this Plan of Merger. When authorizing such payment in exchange therefor, the Board of Directors of the Surviving Corporation may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Certificate to give the Surviving Corporation a bond in such sum as it may direct or otherwise give such indemnity as it may reasonably direct as protection against any adverse claim that may be made against the Surviving Corporation with respect to the Company Certificate alleged to have been lost, stolen or destroyed.
(F) Notwithstanding any provision of this Agreement to the contrary, any Shares held by a holder who has demanded and perfected his right for payment of the fair value of such Shares in accordance with Subchapter D of Chapter 15 of the BCL and who, as of the Effective Time, the Exchange Agent's duties has neither effectively withdrawn nor lost such right to payment, shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall not be paid converted into or represent a right to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied but the holder thereof shall only be entitled to such rights as are granted by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving CorporationBCL.
(dG) After Notwithstanding the provisions of the immediately preceding subsection (F), if any holder of Shares who demands payment of the fair value of such Shares under the BCL shall effectively withdraw or lose (through failure to perfect or otherwise) his right to appraisal rights, then, as of the later of the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation Time or the Exchange Agentoccurrence of such event, they such holder's Shares shall automatically be canceled converted into and exchanged for represent only the applicable right to receive the Merger Consideration, Consideration as provided in this Article IPlan of Merger, subject to applicable law in without interest thereon, upon surrender of the case of Dissenting certificate or certificates representing such Shares.
(H) The Company shall give Parent (i) prompt notice of any written notice of dissent, written demands for payment of the fair value of any Shares, withdrawals of such demands, and any other instruments served pursuant to the BCL and received by the Company and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for payment of the fair value under the BCL. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for payment of the fair value of any Shares or offer to settle any such demands.
Appears in 1 contract
Exchange of Certificates. (a) From and after Prior to the Effective Time, Purchaser shall appoint a bank or trust company to act as paying agent hereunder, which shall be designated by FKW Sub Chemical Mellon Trust Company (Shareholder Services), or such other entity as Purchaser and reasonably acceptable to the Company may mutually select (the "Exchange Paying Agent") shall act as exchange agent in effecting for the exchange payment of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (upon surrender of Certificates. All of the "Certificates"). At or prior to fees and expenses of the Effective Time, FKW Sub Paying Agent shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received be borne by the Exchange AgentPurchaser.
(b) Promptly Purchaser shall take all steps necessary to enable and cause the Surviving Corporation to provide the Paying Agent with cash in amounts necessary to pay the Merger Consideration, when and as such amounts are needed by the Paying Agent.
(c) As soon as reasonably practicable after the Effective Time, the Exchange Paying Agent shall mail to each record holder of Certificates record of Common Stock immediately prior to the Effective Time (excluding any shares of Common Stock which will be canceled pursuant to Section 2.2(b) and any Dissenting Shares)
(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 proper delivery of such Certificates to the Paying Agent and shall be in such form and have such other provisions as Purchaser shall specify) and (ii) instructions for the use thereof in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent) and instructions for use in surrendering Certificates and receiving Paying Agent or to such other agent or agents as may be appointed by the Merger Consideration therefor. Upon the surrender of each CertificateSurviving Corporation, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an a bank check in the amount equal to of cash into which the Merger Consideration multiplied by the number shares of Shares Common Stock theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 2.2, and such Certificate the Certificates so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall will be paid or will accrue on the Merger Consideration cash payable upon the surrender of the Certificatesany Certificate. If any Merger Consideration payment is to be paid made to a Person person other than the Person person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of payment that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment transfer of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Notwithstanding Until surrendered as contemplated by this Section 2.3, each Certificate (other than Certificates representing Dissenting Shares and Certificates representing any shares of Common Stock to be canceled as set forth in Section 2.2(b)) shall be deemed at any time after the foregoingEffective Time to represent only the right to receive upon such surrender the amount of cash, neither without interest, into which the Exchange shares of Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 2.2.
(d) Purchaser shall have the right to make additional rules, not inconsistent with the terms of this Agreement, governing the payment of cash for shares of Common Stock converted into the right to receive the Merger Consideration.
(e) None of the Purchaser, the Company, Newco, the Surviving Corporation, the Paying Agent nor or any party hereto other person shall be liable to a any former holder of Shares shares of Common Stock for any Merger Consideration amount properly delivered to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cf) Promptly following In the date which is 180 days after event that any Certificate shall have been lost, stolen or destroyed, upon the Effective Time, making of an affidavit of that fact by the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender person claiming such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned propertybe lost, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied stolen or destroyed and, if required by the number Purchaser, the posting by such person of Shares represented by a bond in such reasonable amount as the Purchaser may direct as indemnity against any claim that may be made against it with respect to such Certificate, without any interest thereonthe Paying Agent will issue in exchange for such lost, but shall have no greater rights against stolen or destroyed Certificate the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided deliverable in respect thereof pursuant to this Article I, subject to applicable law in the case of Dissenting SharesAgreement.
Appears in 1 contract
Sources: Merger Agreement (Alberto Culver Co)
Exchange of Certificates. (a) From and after Prior to the Effective Time, the Company shall appoint a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company act as paying agent hereunder, (the "Exchange Paying Agent") shall act as exchange agent in effecting for the exchange payment of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (upon surrender of Certificates. All of the "Certificates"). At or prior to fees and expenses of the Effective Time, FKW Sub Paying Agent shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received be borne by the Exchange AgentSurviving Corporation.
(b) Promptly Marketing shall take all steps necessary to enable and cause the Surviving Corporation to provide the Paying Agent with cash in amounts necessary to pay the Merger Consideration, when and as such amounts are needed by the Paying Agent.
(c) As soon as reasonably practicable after the Effective TimeTime but no later than 20 days of such time, the Exchange Paying Agent shall mail to each record holder of Certificates record of Company Stock immediately prior to the Effective Time (excluding any Dissenting Shares)
(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 proper delivery of such Certificates to the Paying Agent and shall be in such form and have such other provisions as the Surviving Corporation shall reasonably specify) and (ii) instructions for the use thereof in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent) and instructions for use in surrendering Certificates and receiving Paying Agent or to such other agent or agents as may be appointed by the Merger Consideration therefor. Upon the surrender of each CertificateSurviving Corporation, together with such letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as may reasonably be required by the instructions theretoPaying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor an a bank check in the amount equal to of cash into which the Merger Consideration multiplied by the number shares of Shares Company Stock theretofore represented by such CertificateCertificate shall have been converted pursuant to Section 2.2, and such Certificate the Certificates so surrendered shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall will be paid or will accrue on the Merger Consideration cash payable upon the surrender of the Certificatesany Certificate. If any Merger Consideration payment is to be paid made to a Person person other than the Person person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of payment that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person person requesting such exchange payment shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment transfer of such Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Notwithstanding Until surrendered as contemplated by this Section 2.3, each Certificate (other than Certificates representing Dissenting Shares) shall be deemed at any time after the foregoingEffective Time to represent only the right to receive upon such surrender the amount of cash, neither without interest, into which the Exchange shares of Company Stock theretofore represented by such Certificate shall have been converted pursuant to Section 2.2.
(d) None of Marketing, Acquisition Sub, the Company, the Surviving Corporation, the Paying Agent nor or any party hereto other person shall be liable to a any former holder of Shares shares of Company Stock for any Merger Consideration amount properly delivered to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(ce) Promptly following In the date which is 180 days after event that any Certificate shall have been lost, stolen or destroyed, upon the Effective Timemaking 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 Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed posting by holders such person of Certificates shall be paid to a bond in such reasonable amount as the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate direct as indemnity against any claim that may be made against it with respect to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereonthe Paying Agent will issue in exchange for such lost, but shall have no greater rights against stolen or destroyed Certificate the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided deliverable in respect thereof pursuant to this Article I, subject to applicable law in the case of Dissenting SharesAgreement.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company Parent (the "Exchange AgentEXCHANGE AGENT") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares Certificates which, prior to the Effective Time, represented shares of Company Common Stock or Company Preferred Stock, as the case may be, entitled to payment pursuant to Section 1.6 (the "Certificates")2.05 hereof. At or immediately prior to the Effective Time, FKW Sub Parent shall deposit with the Exchange Agent the amount aggregate Merger Consideration necessary to enable make the payments to be made as contemplated by Section 2.05 hereof on a timely basis (the "DEPOSIT AMOUNT") in trust for the benefit of the holders of Certificates. Upon the surrender of each such Certificate and the issuance and delivery by the Exchange Agent to exchange of the Merger Consideration for applicable thereto in exchange therefor, such Certificate shall forthwith be cancelled. Until so surrendered and exchanged, each such Certificate (other than Certificates received representing shares held by Parent or Company or any direct or indirect Subsidiary of Parent and Dissenting Shares) shall represent solely the right to receive the Merger Consideration applicable thereto, without interest, multiplied by the Exchange Agent.
(b) number of shares represented by such Certificate. Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates which immediately prior to the Effective Time represented shares 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 proper delivery of the Certificates to the Exchange Agent) and instructions for use in surrendering such Certificates and receiving the Merger Consideration thereforapplicable thereto. Upon the surrender to the Exchange Agent of each Certificate, such an outstanding Certificate together with such letter of transmittal transmittal, duly completed and validly executed and completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateapplicable thereto, without any interest thereon and such Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificatescancelled. If any Merger Consideration is to be paid to a Person name other than the Person name in whose name which the Certificate representing shares surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and 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 Merger Consideration to a Person 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 party hereto shall be liable to a holder of Shares shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and or similar laws.
(cb) Promptly following Parent shall not be entitled to the return of any of the Deposit 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, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate representing a share may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificateapplicable thereto, 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.
(dc) After At and after the Effective Time, the holders of Certificates to be exchanged for the Merger Consideration applicable thereto pursuant to this Agreement shall cease to have any rights as shareholders of Company except for the right to surrender such holder's Certificates in exchange for payment of the Merger Consideration applicable thereto, and after the Effective Time there shall be no transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled cancelled and exchanged for the Merger Consideration applicable Merger Considerationthereto, as provided in this Article III, subject to applicable law in the case of Dissenting Shares.
(d) 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 subject to such other conditions as the Parent may impose, the Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect of such Certificate as determined in accordance herewith. When authorizing such payment of the Merger Consideration in exchange for such Certificate, the Parent (or any authorized officer thereof) may, in its reasonable discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to deliver to the Surviving Corporation a bond in such sum as the Surviving Corporation may reasonably require as indemnity against any claim that may be made against Parent, the Surviving Corporation or the Exchange Agent with respect to the Certificate alleged to have been lost, stolen or destroyed.
(e) The provisions of this Section 2.09 shall also apply to Dissenting Shares that lose their status as such, except that the obligations of Exchange Agent under this Section 2.09 shall commence on the date of loss of such status.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Company shall cause the Paying Agent shall to mail or otherwise deliver to each Equity Holder of record holder as of Certificates the Effective Time of certificates or Restricted Stock Awards or Warrants which immediately prior to the Effective Time represented shares of Common Stock, Preferred Stock, or Warrants, respectively (collectively, the “Certificates”) a letter of transmittal in the form attached hereto as Exhibit E (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange AgentPaying Agent (if such Certificates represent shares of Preferred Stock or Common Stock or Warrants) or to the Company (if such Certificates represent Warrants)), and instructions for use in surrendering effecting the surrender of the Certificates and receiving the Merger Consideration payment therefor. Upon surrender to the surrender Paying Agent or the Company, as applicable, of each Certificatea Certificate or an Affidavit of Lost Certificate (as defined below), together with such letter of transmittal properly completed and duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the applicable portion of the Common Stock Merger Consideration, Preferred Stock Merger Consideration multiplied by or the number Warrant Merger Consideration, as applicable (after giving effect to any required Tax withholdings pursuant to Section 3.6(f)), in accordance with the terms of Shares represented by such Certificatethis Agreement and the Allocation Statement. Each Certificate so surrendered shall be cancelled. All payments of Common Stock Merger Consideration, the Preferred Stock Merger Consideration, and the Warrant Merger Consideration with respect to such cancelled Certificates or Affidavits of Lost Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied made by the number of Shares represented by such Certificate. No interest shall be paid Paying Agent or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person Company, respectively, as promptly as reasonably practicable in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited accordance with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of any SharesSection 3.6(a). If, after the Effective Time, Certificates are any Certificate is presented to the Surviving Corporation or the Exchange AgentParent, they it shall be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in Section 3.6. No interest shall be paid or accrued on any amount payable upon due surrender of the case of Dissenting SharesCertificates.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company At least three (the "Exchange Agent"3) shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or Business Days prior to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(b) Promptly after the anticipated Effective Time, the Exchange Agent shall mail to each record holder of Certificates record of Company Common Stock and Company Preferred Stock immediately prior to the Effective Time (i) a letter of transmittal (the "Company Letter of Transmittal") (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates Company certificates representing shares of the Company Common Stock and Company Preferred Stock (the "Certificates") shall pass, only upon proper delivery of the such Certificates to the Exchange AgentAgent and shall be in such form and have such other provisions as Parent shall reasonably specify) and (ii) instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each Certificatethe Certificates in exchange for the aggregate Per Common Share Merger Consideration and/or Per Preferred Share Merger Consideration, as the case may be, with respect to the shares of Company Common Stock or Company Preferred Stock, as the case may be, formerly represented thereby.
(b) Prior to or contemporaneously with the Effective Time, Parent shall cause to be deposited with the S▇▇▇▇▇▇▇▇▇ Law Group as the exchange agent (the "Exchange Agent") a certificate or certificates for the aggregate number of shares of Parent Common Stock necessary for the Exchange Agent to deliver the aggregate Per Common Share Merger Consideration and Per Preferred Share Merger Consideration pursuant to Section 1.5 hereof to holders of Company Common Stock and/or Company Preferred Stock issued and outstanding immediately prior to the Effective Time who are to receive the Per Common Share Merger Consideration and/or Per Preferred Share Merger Consideration.
(c) Upon surrender to the Exchange Agent of Certificates, together with such letter the Company Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions thereto, and only upon such surrender, the holder of such Certificate shall be entitled to receive receive, in exchange therefor therefor, and Parent shall promptly cause to be delivered by the Exchange Agent to such holder, a certificate or certificates for such number of shares of Parent Common Stock to which such holder is entitled. The Certificates surrendered pursuant to this Section 1.9(c) shall forthwith be cancelled. If any Certificate shall have been lost, stolen, mislaid or destroyed, then upon receipt of an amount equal affidavit of that fact from the holder claiming such Certificate to be lost, mislaid, stolen or destroyed and a lost certificate indemnity, the Exchange Agent shall issue to such holder the Per Common Share Merger Consideration multiplied by and/or Per Preferred Share Merger Consideration, as the number of Shares case may be, into which the shares represented by such Certificatelost, and such stolen, mislaid or destroyed Certificate shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender of the Certificates. If any Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to 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 have been paid or is not applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, without any interest thereon, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporationconverted.
(d) After The Per Common Share Merger Consideration and/or Per Preferred Share Merger Consideration paid upon the Effective Time, there surrender for exchange of Certificates in accordance with the terms of this Article 1 shall be no transfers on the stock transfer books deemed to have been paid and issued in full satisfaction of the Surviving Corporation of any Shares. If, after the Effective Time, Certificates are presented all rights pertaining to the Surviving Corporation or the Exchange Agent, they shall be canceled shares of Company Common Stock and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting SharesCompany Preferred Stock theretofore represented by such Certificates.
Appears in 1 contract
Sources: Merger Agreement (Twinlab Consolidated Holdings, Inc.)
Exchange of Certificates. (a) From and At or as soon as practicable after the Effective Time, a bank BankBoston N.A. or trust company to be designated by FKW Sub and reasonably acceptable to the Company its designee (the "Exchange Disbursement Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior will send to the Effective Time, FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
holders of Company Stock Certificates: (bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agentii) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each CertificateCompany Stock Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Disbursement Agent for exchange, together with such a duly executed letter of transmittal duly executed and completed in accordance with such other documents as may be reasonably required by Parent or the instructions theretoDisbursement Agent, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by that such holder has the number right to receive pursuant to the provisions of Shares represented by such CertificateSection 1.5 above, and such the Company Stock Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall will be paid or accrue accrued on the Merger Consideration cash payable upon the surrender of the Company Stock Certificates. If any Merger Consideration payment is to be paid made to a Person person other than the Person person in whose name the Company Stock Certificate surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to such exchange of payment that the Person Company Stock Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall payment pay to the Exchange Agent any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person person other than the registered holder of the Company Stock Certificate surrendered, surrendered or such Person shall establish to the satisfaction of the Exchange Agent Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 1.8, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender the Merger Consideration 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 delivery 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 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. As of the Effective Time, the Company shall deposit with the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) the total amount of the Deposit. (The Company shall be entitled to all interest and other amounts earned on the Deposit and such amounts shall not be applied to the Aggregate Merger Consideration.) As of the Effective Time, Parent shall deposit with the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) the total amount of the Initial Merger Consideration plus the BFC Net Proceeds (subject to any applicable reserves) plus the Option Exercise Proceeds plus the Contingent Asset Distribution Amount at the Effective Time (subject to any applicable reserves) plus the Unrestricted Cash minus the Company Transaction Expenses and minus the Option Cancellation Amount, net of the Deposit and net of any amount deposited for use by the Shareholders' Representative pursuant to Section 4.10(b) (such amount, being hereinafter referred to as the "Disbursement Fund"). The Disbursement Fund shall be distributed pursuant to an agreement by and among Parent and the Disbursement Agent in a form reasonably satisfactory to the Company (the "Disbursement Agent Agreement").
(b) Parent and the Surviving Corporation (or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) on their behalf) 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 this Agreement such amounts as Parent or the Surviving Corporation reasonably determine are required to be deducted or withheld therefrom under the Internal Revenue Code (the "Code") or under any provision of state, local or foreign tax law (or, in the alternative, Parent or the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), at Parent's option, may request tax information and other documentation establishing that no withholding is necessary). 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.
(c) If any Company Stock Certificates shall not have been surrendered prior to thirteen (13) months after the Effective Time (or immediately prior to such time on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency), the payment in respect of such Company Stock Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation (except as provided in subsection 1.8(e) below), free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, neither Neither Parent nor the Exchange Agent nor any party hereto Surviving Corporation shall be liable to a any holder or former holder of Shares capital stock of the Company for any Merger Consideration cash amounts, delivered to a any public official pursuant to any applicable abandoned property, escheat and or similar lawslaw.
(cd) Promptly following Any portion of the date Disbursement Fund held by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) pursuant to this Section 1.8 which is 180 days remains undistributed to the stockholders of the Company thirteen (13) months after the Effective Time, the Exchange Agent's duties Time shall terminatebe delivered to Surviving Corporation (except as provided in subsection 1.8(e) below), and any funds deposited stockholders of the Company who have not theretofore complied with this Section 1 shall thereafter look only to Surviving Corporation, and only as general creditors thereof, for payment of their claim for the Merger Consideration to which such stockholders may be entitled.
(e) The Merger Consideration with respect to all Company Stock Certificates issued pursuant to the Trustee's Amended Chapter 11 Plan for the Estate of Bonneville Pacific Corporation dated April 22, 1998" (the "Bankruptcy Plan") which are forfeited pursuant to Section 5.9 of the Bankruptcy Plan (the "Forfeited Plan Shares") shall be distributed as follows: (i)first, the Disbursement Agent (or an escrow agent affiliated with the Exchange Agent that remain unclaimed by holders of Certificates Disbursement Agent) shall be paid distribute to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor Parent an amount equal to the Merger Consideration multiplied Taxes owed, if any, by the Surviving Corporation as a result of the forfeiture of such Forfeited Plan Shares (provided that for this purpose, Taxes shall be calculated taking into account only items of income, gain, loss, deduction or credit relating to such forfeiture and as if no net operating losses of the Acquired Companies or Parent and any of its Subsidiaries were available to offset any income recognized as a result of such forfeiture), such amount to be calculated by Parent or the Surviving Company and set forth in a notice to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent), and (ii) second, any amounts remaining after the distribution described in clause (i) of this subsection (e) shall be distributed to the holders of Converted Shares (subject to the restrictions herein), pro rata, based on the number of shares or share equivalents each holder surrendered. The portion of the Disbursement Fund described in clause (ii) of the preceding sentence held by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) pursuant to this Section 1.8 on account of the Forfeited Plan Shares represented shall be delivered by such Certificatethe Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) between thirteen and fourteen months after the Effective Time to the stockholders of the Company who have surrendered their Company Stock Certificates to the Disbursement Agent in accordance with Section 1.8(a), without any interest thereonpro rata, but shall have no greater rights against based on the number of shares of Company Common Stock or share equivalents each stockholder surrendered.
(f) All cash received by the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) from the Surviving Corporation than may be accorded on account of Contingent Assets pursuant to general creditors Section 1.5(d), together with any interest earned thereon after delivery of such cash to the Surviving Corporation.
Disbursement Agent (d) After or an escrow agent affiliated with the Effective TimeDisbursement Agent), there shall be no transfers delivered to the holders of Converted Shares who have surrendered their Company Stock Certificates to the Disbursement Agent in accordance with Section 1.8(a), pro rata, based on the stock transfer books number of the Surviving Corporation shares of any Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation Company Common Stock or the Exchange Agent, they shall be canceled and exchanged for the applicable Merger Consideration, as provided in this Article I, subject to applicable law in the case of Dissenting Sharesshare equivalents each holder surrendered.
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange of the Merger Consideration for certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or prior Prior to the Effective Time, FKW Sub shall deposit with Parent will designate the Exchange Paying Agent and from time to time will make or cause to be made available to the amount Paying Agent funds in the amounts and at the times necessary to enable for the Exchange Agent to exchange payment of the Merger Consideration for Certificates received by on surrender of Certificates. Any and all interest earned on funds made available to the Exchange AgentPaying Agent hereunder will belong to and be turned over to Parent.
(b) Promptly As soon as reasonably practicable after the Effective Time, the Exchange Paying Agent shall will mail to each record holder of Certificates record of a Certificate:
(1) a letter of transmittal (transmittal, which shall will specify that delivery shall will be effected, and risk of loss and title to the Certificates shall will pass, only upon proper on delivery of the Certificates to the Exchange AgentPaying Agent and will be in a form and have such other provisions as Parent may specify; and
(2) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon effecting the surrender of each CertificateCertificates in exchange for the Merger Consideration. On surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as Parent may appoint, together with such that letter of transmittal transmittal, duly executed executed, and completed in accordance with such other documents as the instructions theretoPaying Agent reasonably may require, the holder of such that Certificate shall will be entitled to receive in exchange therefor an for each Share that Certificate formerly represented the amount of cash equal to the Merger Consideration multiplied by the number of Shares represented by such CertificateConsideration, and such that Certificate shall forthwith will be canceledcancelled. Until so surrendered and exchanged, each such Certificate shall represent solely In the right to receive an amount equal to event of a transfer of ownership of Converted Shares which is not registered in the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender transfer records of the Certificates. If any Merger Consideration is to Company, payment may be paid made to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such if that Certificate shall be accompanied by all documents required to evidence is properly endorsed or otherwise in proper form for transfer and effect such transfer, and it shall be a condition to such exchange that the Person requesting such exchange shall pay to the Exchange Agent that payment:
(1) pays any transfer or other taxes required by reason of Taxes the payment of such Merger Consideration to a Person other than the registered holder of the that Certificate surrendered, or such Person shall establish necessitates; or
(2) establishes to the satisfaction of the Exchange Agent Surviving Corporation that such tax the Tax has been paid or is not applicable. Notwithstanding No interest will accrue or become payable on the foregoing, neither cash payable on the Exchange Agent nor surrender of any party hereto shall be liable to a holder of Shares for any Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar lawsCertificate.
(c) Promptly following All cash paid on the date which is 180 days after surrender of Certificates in accordance with the terms of this Article Three will be deemed to have been paid in full satisfaction of all rights pertaining to the Converted Shares those Certificates theretofore represented. At the Effective Time, the Exchange Agent's duties shall terminatestock transfer books of the Company will close, and any funds deposited with the Exchange Agent that remain unclaimed by holders of Certificates shall be paid to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate, 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.
(d) After the Effective Time, there shall will be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe Converted Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange AgentPaying Agent for any reason, they shall will be canceled cancelled and exchanged for the applicable Merger Consideration, as provided in this Article IThree provides.
(d) None of Parent, subject the Surviving Corporation or the Paying Agent will be liable to any Person in respect of any cash delivered to a public official under any applicable law in the case of Dissenting Shares.abandoned property, escheat or similar law. ARTICLE FOUR
Appears in 1 contract
Exchange of Certificates. (a) From and after the Effective Time, a bank or trust company Prior to be designated by FKW Sub and reasonably acceptable to the Company (the "Exchange Agent") shall act as exchange agent in effecting the exchange receiving any portion of the Merger Consideration for Closing Consideration, each holder of record of a certificate or certificates representing Shares entitled to payment pursuant to Section 1.6 (the "Certificates"). At or that immediately prior to the Effective Time, FKW Sub Time represented issued and outstanding shares of Company Stock (the “Certificates”) shall deposit with have delivered to the Exchange Paying Agent the amount necessary to enable the Exchange Agent to exchange the Merger Consideration for Certificates received by the Exchange Agent.
(bi) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of Certificates a properly completed and duly executed letter of transmittal in the form of Exhibit 3.8(a) (which a “Letter of Transmittal”) and (ii) the Certificates, if any, held of record by such holder. Such Letter of Transmittal shall specify have been previously delivered by the Paying Agent to such holder at or promptly following the Effective Time along with instructions thereto and a notice to the effect that delivery of the Certificates shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent) and instructions for use in surrendering Certificates and receiving the Merger Consideration therefor. Upon the surrender of each Certificatea Certificate to the Paying Agent, together with such letter Letter of transmittal Transmittal, duly executed and completed in accordance with the instructions theretoexecuted, the holder of such Certificate shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration multiplied by consideration into which the number of Shares shares represented by such CertificateCertificate shall have been converted pursuant to Section 3.6, and such the Certificate so surrendered shall be canceled. Until so surrendered and exchanged, each such Certificate shall represent solely If the right to receive an amount equal to the Merger Consideration multiplied by the number of Shares represented by such Certificate. No interest shall be paid or accrue on the Merger Consideration payable upon the surrender portion of the Certificates. If any Merger Closing Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered in exchange therefor is registered, such Certificate shall be accompanied by all documents required to evidence and effect such transfer, and it shall be a condition to of exchange that such exchange Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason of the payment of such Merger Consideration exchange to a Person other than the registered holder of the such Certificate surrendered, or such Person shall establish to the reasonable satisfaction of the Exchange Agent Company that such tax Tax has been paid or is not applicable. Notwithstanding the foregoingUntil surrendered as contemplated by this Section 3.8, neither the Exchange Agent nor any party hereto each Certificate shall be liable deemed as of the Effective Time of the Merger to a holder represent only the right to receive, upon surrender of Shares for any Merger Consideration delivered to a public official such Certificate in accordance with this Section 3.8(a), the consideration into which the shares represented by such Certificate shall have been converted pursuant to applicable abandoned propertySection 3.7(a). If any certificate evidencing any share of Common Stock shall have been lost, escheat stolen or destroyed, the Purchaser or the Paying Agent may, in its discretion and similar lawsas a condition precedent to the issuance of any consideration pursuant to Section 3.6, require the owner of such lost, stolen or destroyed certificate to provide an appropriate affidavit with respect to such certificate.
(cb) Promptly following All Closing Consideration paid upon the date which is 180 days after the Effective Time, the Exchange Agent's duties shall terminate, and any funds deposited surrender of Certificates in accordance with the Exchange Agent that remain unclaimed by holders terms of Certificates this Article III shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the Surviving Corporation upon demand. Thereafter, each holder of a Certificate may surrender such Certificate to the Surviving Corporation along with the applicable letter of transmittal and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor an amount equal to the Merger Consideration multiplied by the number of Shares shares represented by such Certificate, 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.
(d) After the Effective Time, Certificates and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of any Sharesthe shares of Company Stock that were issued and outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agentfor any reason, they shall be canceled and exchanged for the applicable Merger Consideration, portion of the Closing Consideration as provided in this Article IIII.
(c) At any time following the six (6) month anniversary of the Closing Date, the Purchaser or the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto but excluding for all purposes the Stockholder Representative Reserve) that had been made available to the Paying Agent and which have not been disbursed to the Holders, and thereafter, such Holders shall be entitled to look only to the Purchaser or the Surviving Corporation (subject to abandoned property, escheat or other similar laws) as general creditors thereof with respect to the payment of any Closing Consideration that would otherwise be payable upon surrender of any Certificates held by such Holders, as determined pursuant to this Agreement, without any interest thereon. Any amounts remaining unclaimed by such Holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable law Laws, the property of the Purchaser, free and clear of all claims or interests of any Person previously entitled thereto.
(d) The Paying Agent, its designee, the Stockholder Representative the Purchaser, Merger Sub, the Company or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from consideration otherwise payable pursuant to this Agreement to any Holder such amounts as are required to be deducted and withheld 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, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in the case respect of Dissenting Shareswhich such deduction and withholding was made.
Appears in 1 contract
Sources: Merger Agreement (OMNICELL, Inc)