Common use of Exchange of Shares and Certificates Clause in Contracts

Exchange of Shares and Certificates. (a) As of the Effective Time of the Merger, Subsidiary shall deposit the Merger Consideration with ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C., or such other exchange and escrow agent as may be mutually agreed upon by Parent and Subsidiary (the “Escrow Agent”), for the benefit of the holders of the Parent Common Stock each for exchange in accordance with this Article II. (b) As soon as reasonably practical after the Effective Time, the Escrow Agent shall mail or present to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented issued and outstanding shares of Parent Common Stock (the “Certificates”) (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to a Certificate shall pass, only upon delivery of the Certificate to the Escrow Agent and shall be in such form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable share of the Merger Consideration. After the Effective Time, upon surrender to the Escrow Agent of a Certificate, together with such letter of transmittal, duly executed, and such other documentation as may reasonably be required by the Escrow Agent, the holder of a Certificate shall be entitled to receive in exchange therefor (i) a Merger Note in the form attached hereto as Exhibit C in a principal amount equal to the product of $45.31 multiplied by the number of shares of Parent Common Stock represented by such Certificate; (ii) an Original Shareholders Subordinated Promissory Note in the form attached hereto as Exhibit D hereto in a principal amount equal to the product of $23.44 multiplied by the number of shares of Parent Common Stock represented by such Certificate; (iii) a certificate evidencing ownership by the holder of a number of shares of Subsidiary Common Stock equal to the product of 31.5863 multiplied by the number of shares of Parent Common Stock represented by such Certificate; and (iv) if any portion of the holder’s share of the Merger Consideration would otherwise consist of a fractional share of Subsidiary Common Stock, such fractional share shall not be issued, and shall, instead, be rounded up to a whole share of Subsidiary Common Stock, and the same shall be issued to the holder of the Certificate the exchange of which resulted in the fractional share; provided that, the additional share may be added to the certificate deliverable to such holder as provided in Section 2.7(b)(iii) above. After the Effective Time, there shall be no further transfer on the records of Subsidiary or its transfer agent of Certificates representing shares of Parent Common Stock which have been converted pursuant to this Agreement into the right to receive an applicable share of the Merger Consideration, and if such Certificates are presented to Subsidiary for transfer, they shall be canceled against delivery of the applicable share of the Merger Consideration as provided in this Article II. In the event of a transfer of ownership of Parent Common Stock which is not registered in the transfer records of Subsidiary, a payment of the applicable portion of the Merger Consideration may be made to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed, with signature guaranteed, or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required to be paid on account of such transfer or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.8, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the pro rata portion of the Merger Consideration as contemplated by this Section 2.8. No interest shall be paid or accrue on the Merger Consideration so payable. (c) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby. (d) Any portion of the Merger Consideration which remains undistributed to the holders of the Certificates for one year after the Effective Time shall be delivered by the Escrow Agent to the Surviving Corporation, upon demand, and any holders of the Certificates who have not theretofore complied with this Section 2.8 shall thereafter look solely to the Surviving Corporation as general creditors thereof with respect to the payment of their claim to a share of such Merger Consideration. (e) Neither Parent nor Subsidiary shall be liable to any person in respect of any sums from the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificates representing shares of Parent Common Stock shall not have been surrendered prior to one year after the Effective Time (or immediately prior to such earlier date on which any sums from the Merger Consideration would otherwise escheat to or become the property of any Governmental Authority), any such sums payable in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. (f) The Surviving Corporation shall be responsible for all costs and fees of the Escrow Agent and such costs and fees shall not be deducted from the Merger Consideration.

Exchange of Shares and Certificates. (a) As of Not less than five (5) Business Days prior to the Effective Time of Closing Date, Parent shall engage an institution reasonably satisfactory to the Merger, Subsidiary shall deposit Company to act as exchange agent in connection with the Merger Consideration with ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C., or such other exchange and escrow agent as may be mutually agreed upon by Parent and Subsidiary (the “Escrow Exchange Agent”). At such times which shall be sufficient to comply with the procedures set forth in Section 2.9(b), Parent shall deposit with the Exchange Agent, in trust for the benefit of the holders of Company Stockholders, certificates representing the Transaction Shares issuable pursuant to Section 2.7(c), less the Escrowed Earnout Shares which shall be deposited with the Escrow Agent pursuant to Section 2.8. In addition, Parent Common Stock each for exchange in accordance shall make available by depositing with this Article II. (b) As soon the Exchange Agent, as reasonably practical necessary from time to time after the Effective Time, cash in an amount sufficient to make the Escrow Agent shall mail or present to each holder payments in lieu of record of a certificate or certificates which immediately prior to the Effective Time represented issued and outstanding fractional shares of Parent Common Stock (pursuant to Section 2.7(e) and any dividends or distributions to which Company Stockholders may be entitled pursuant to Section 2.9(c). All cash and certificates representing shares of Parent Common Stock deposited with the Exchange Agent shall hereinafter be referred to as the “Exchange Fund.” (b) From and after the Effective Time, each registered holder of Company Certificates”) , in order to receive the Transaction Shares deliverable in respect of such shares of Company Common Stock, shall surrender each Company Certificate to the Exchange Agent along with (i) a properly completed letter of transmittal (which shall specify that delivery shall the form of such letter of transmittal to be effected, and risk of loss and title to a Certificate shall pass, only upon delivery of the Certificate provided by Parent to the Escrow Agent Company for delivery to each Company Stockholder no later than five (5) Business Days prior to Closing (it being understood that such letter of transmittal shall provide that such holder shall acknowledge that it is receiving restricted securities under the federal securities laws and shall be in such form and have such will contain other provisions as Parent may reasonably specifycustomary investment representations)) and (ii) other appropriate materials and instructions for use in effecting the surrender of the Company Certificates in exchange for the applicable share Transaction Shares that such holder has a right to receive pursuant to Section 2.7(c), cash in an amount sufficient to make the payments in lieu of the Merger Considerationfractional shares pursuant to Section 2.7(e) and any dividends or other distributions to which such holder may be entitled pursuant to Section 2.9(c). After the Effective Time, upon Upon surrender of Company Certificates for cancellation to the Escrow Agent of a CertificateExchange Agent, together with such properly completed letter of transmittal, duly executed, transmittal and such other documentation documents as may reasonably be required by the Escrow AgentExchange Agent (the “Surrender Date”), the such holder of a Certificate Company Certificates shall receive in exchange therefor, as soon as reasonably practicable after the Surrender Date, (i) certificates representing the Transaction Shares into which its shares of Company Common Stock shall be converted or exchanged at the Effective Time, less the Escrowed Earnout Shares, (ii) payment of cash in lieu of fractional shares which such holder is entitled to receive in exchange therefor pursuant to Section 2.7(e), and (iiii) a Merger Note in any dividends or distributions payable pursuant to Section 2.9(c), and the form attached hereto as Exhibit C in a principal amount equal Company Certificates so surrendered shall forthwith be marked cancelled. Until so surrendered, outstanding Company Certificates will be deemed, from and after the Effective Time, to evidence only the product of $45.31 multiplied by right to receive the applicable number of shares of Parent Common Stock represented by such Certificate; issuable pursuant to Section 2.7(c) (iiand any amounts to be paid pursuant to Section 2.7(e) an Original Shareholders Subordinated Promissory Note or Section 2.9(c)) or, in the form attached hereto as Exhibit D hereto in a principal amount equal to the product case of $23.44 multiplied by the number holders of shares of Parent Common Stock represented by such Certificate; (iii) a certificate evidencing ownership by the holder of a number of shares of Subsidiary Common Stock equal to the product of 31.5863 multiplied by the number of shares of Parent Common Stock represented by such Certificate; and (iv) if any portion of the holder’s share of the Merger Consideration would otherwise consist of a fractional share of Subsidiary Common StockAppraisal Shares, such fractional share shall not be issued, and shall, instead, be rounded up to a whole share of Subsidiary Common Stock, and the same shall be issued to the holder of the Certificate the exchange of which resulted in the fractional share; provided that, the additional share may be added to the certificate deliverable to such holder as provided in Section 2.7(b)(iii) above. After the Effective Time, there shall be no further transfer on the records of Subsidiary or its transfer agent of Certificates representing shares of Parent Common Stock which have been converted pursuant to this Agreement into the right to receive an applicable share of the Merger Consideration, and if such Certificates are presented to Subsidiary for transfer, they shall be canceled against delivery of the applicable share of the Merger Consideration as provided payments set forth in this Article II. In the event of a transfer of ownership of Parent Common Stock which is not registered in the transfer records of Subsidiary, a payment of the applicable portion of the Merger Consideration may be made to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed, with signature guaranteed, or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required to be paid on account of such transfer or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.8, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the pro rata portion of the Merger Consideration as contemplated by this Section 2.82.7(g). No interest shall be paid or shall accrue on the Merger Consideration so payableany amount payable pursuant to this ARTICLE 2. (c) No dividends or other distributions declared or made after the date of this Agreement with respect to the Parent Common Stock with a record date after the Effective Time shall will be paid to the holder holders of any unsurrendered Certificate Company Certificates with respect to the shares of Parent Common Stock represented therebyto be issued upon surrender thereof until the registered holders of such Company Certificates shall surrender such Company Certificates. Subject to applicable Law, following surrender of any such Company Certificates with a properly completed letter of transmittal, Parent shall promptly deliver, or cause to be promptly delivered, to the registered holder thereof, without interest, the certificates representing shares of Parent Common Stock issued in exchange therefor (not including the Escrowed Earnout Shares), cash in lieu of fractional shares of Parent Common Stock which such holder is entitled to receive pursuant to Section 2.7(e) and the amount of any such dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock. (d) All shares of Parent Common Stock issued upon the surrender for exchange of Company Certificates in accordance with the terms of this ARTICLE 2 and any cash paid pursuant to Section 2.7(c) or Section 2.9(c) shall be deemed to have been issued (or paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock previously represented by such Company Certificates. As of 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 LLC of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates are presented to the Surviving LLC or the Exchange Agent for any reason, they shall be cancelled and exchanged as provided in this ARTICLE 2. (e) Any portion of the Merger Consideration Exchange Fund which remains undistributed to the holders of the Company Certificates for one (1) year after the Effective Time shall be delivered by the Escrow Agent to the Surviving CorporationParent, upon demand, and any holders of the Company Certificates who have not theretofore complied with this Section 2.8 ARTICLE 2 shall thereafter look solely only to the Surviving Corporation as general creditors thereof with respect to the payment Parent for delivery of their claim for Transaction Shares pursuant to a share Section 2.7(c), any cash in lieu of such Merger Considerationfractional shares of Parent Common Stock pursuant to Section 2.7(e) and any dividends or distributions pursuant to Section 2.9(c). (ef) Neither Parent nor Subsidiary None of Parent, Merger Sub, the Bank, the Company or the Exchange Agent or any of their respective directors, officers, employees and agents shall be liable to any person Person in respect of any sums from portion of the Merger Consideration Exchange Fund (or dividends or distributions with respect thereto) delivered to a public official Governmental Body pursuant to any applicable abandoned property, escheat or similar lawLaw. If any Certificates representing shares of Parent Common Stock Company Certificate shall not have been surrendered prior to one year seven (7) years after the Effective Time (Time, or immediately prior to such earlier date on which any sums from portion of the Merger Consideration Exchange Fund or any dividends or distributions with respect to Parent Common Stock issuable in respect of such Company Certificate would otherwise escheat to or become the property of any Governmental Authority)Body, any such sums payable shares, cash, dividends or distributions in respect of such Certificates Company Certificate shall, to the extent permitted by applicable lawLaws, become the property of the Surviving CorporationLLC, free and clear of all claims or interest interests of any person Person previously entitled thereto. (fg) The Surviving Corporation Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent from time to time; provided, that no such investment or loss thereon shall affect the amounts payable to Company Stockholders after the Effective Time pursuant to this ARTICLE 2. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable pursuant to this ARTICLE 2 shall promptly be paid to Parent. (h) Parent and the Exchange Agent shall be responsible entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder of Company Common Stock such amounts as Parent or the Exchange Agent may be required to deduct and withhold with respect to the making of such payment under the Code or any other provision of federal, state, local or foreign Tax Law. To the extent that amounts are so withheld by Parent or the Exchange Agent, such withheld amounts shall be treated for all costs and fees purposes of this Agreement as having been paid to such holder. Without limiting the generality of the Escrow foregoing, Parent and the Exchange Agent shall have the right to require any holder of Company Common Stock to pay to Parent or the Exchange Agent, as the case may be, an amount of cash equal to the withholding Tax (including withholding Tax under Section 1445(a) of the Code) imposed with respect to the Company Common Stock acquired from such holder prior to, and as a condition to, the transfer to such costs holder of any consideration payable pursuant to this Agreement. (i) In the event any Company Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Company Certificates, upon the making of an affidavit of that fact by the holder thereof, such Transaction Shares as may be required pursuant to Section 2.7(c), cash for fractional shares pursuant to Section 2.7(e) and fees shall not any dividends or distributions payable pursuant to Section 2.9(c); provided, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Certificates to deliver either (i) an agreement of indemnification in a form satisfactory to Parent and the Exchange Agent or (ii) if Parent Common Stock is listed on a “national securities exchange” registered with the SEC under Section 6 of the Exchange Act, a bond in such sum as the transfer agent may direct, as indemnity against any claim that may be deducted from made against Parent or the Merger ConsiderationExchange Agent in respect of the Company Certificates alleged to have been lost, stolen or destroyed.

Exchange of Shares and Certificates. (a) As of the Effective Time of the Merger, Subsidiary Acquisition (or Parent, acting on its behalf) shall deposit the Merger Consideration with ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C., First Union National Bank or such other exchange and escrow agent bank or trust company as may be mutually agreed upon by Company and Parent and Subsidiary (the “Escrow "Exchange Agent”"), for the benefit of the holders of the Parent Common Stock and the Company Stock Options, each for exchange in accordance with this Article II. (b) As soon as reasonably practical after the Effective Time, the Escrow Exchange Agent shall mail or present to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented issued and outstanding shares of Parent Common Stock (the “Certificates”) represented (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to a Certificate shall pass, only upon delivery of the Certificate to the Escrow Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable share of the Merger Consideration. As soon as reasonably practical after the Effective Time, the Exchange Agent shall mail to each holder of a (i) a letter of transmittal and (ii) instructions for use in surrendering such Company Stock Options in exchange for the applicable share of the Merger Consideration. After the Effective Time, upon surrender to the Escrow Exchange Agent of a CertificateCertificate or Company Stock Option, together with such letter of transmittal, duly executed, and such other documentation documents as may reasonably be required by the Escrow Exchange Agent, the holder of a such Certificate or Company Stock Option shall be entitled to receive in exchange therefor (i) a Merger Note check in the form attached hereto as Exhibit C in a principal an amount equal to the product of $45.31 3.40 (subject to possible downward adjustments pursuant to Section 6.7 and Section 6.11 hereof) multiplied by the number of shares of Parent Common Stock represented by such Certificate; (ii) an Original Shareholders Subordinated Promissory Note in the form attached hereto as Exhibit D hereto in a principal amount equal to the product of $23.44 multiplied by Certificate or the number of shares of Parent Common Stock to which options are granted by such Company Stock Option, and the Certificate or Company Stock Option so surrendered shall be cancelled, the foregoing sum to be reduced in the case of a Company Stock Option by the aggregate exercise price of the stock options represented by such Certificate; (iii) a certificate evidencing ownership Company Stock Option and by the holder of a number of shares of Subsidiary Common Stock equal to the product of 31.5863 multiplied by the number of shares of Parent Common Stock represented by such Certificate; and (iv) if any portion of the holder’s share of the Merger Consideration would otherwise consist of a fractional share of Subsidiary Common Stock, such fractional share shall not be issued, and shall, instead, be rounded up to a whole share of Subsidiary Common Stock, and the same shall be issued to the holder of the Certificate the exchange of which resulted in the fractional share; provided that, the additional share may be added to the certificate deliverable to such holder applicable withholding taxes as provided in Section 2.7(b)(iii) above2.7(a). After the Effective Time, there shall be no further transfer on are the records of Subsidiary Company or its transfer agent of Certificates representing shares of Parent Common Stock which have been converted pursuant to this Agreement into the right to receive an applicable share of the Merger Consideration, and if such Certificates are presented to Subsidiary Company for transfer, they shall be canceled against delivery of the applicable share of the Merger Consideration as provided in this Article II. In the event of a transfer of ownership of Parent Common Stock which is not registered in the transfer records of SubsidiaryCompany, a payment of the applicable portion of the Merger Consideration may be made to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed, with signature guaranteed, or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required to be paid on account of such transfer or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.8, each Certificate and each Company Stock Option shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the pro rata portion of the Merger Consideration as contemplated by this Section 2.8. No interest shall be paid or accrue on the Merger Consideration so payable. (c) No dividends or other distributions with respect to the Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby. (d) Any portion of the Merger Consideration which remains undistributed to the holders of the Certificates or the Company Stock Options for one year six months after the Effective Time shall be delivered by the Escrow Exchange Agent to the Surviving Corporation, upon demand, and any holders of the Certificates or Company Stock Options who have not theretofore complied with this Section 2.8 shall thereafter look solely to the Surviving Corporation as general creditors thereof with respect to the payment of their claim to a share of such Merger Consideration. (e) Neither Parent nor Subsidiary None of Parent, Acquisition or Company shall be liable to any person in respect of any sums from the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificates representing shares of Parent Common Stock shall not have been surrendered prior to one year after the Effective Time (or immediately prior to such earlier date on which any sums from the Merger Consideration would otherwise escheat to or become the property of any Governmental Authority), any such sums payable in respect of such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. (f) The Exchange Agent shall invest the Merger Consideration in an interestbearing account, as directed by the Surviving Corporation (within guidelines proposed by Parent and approved by the Company prior to Closing, which approval shall not be unreasonably withheld). Any interest resulting from such investment shall be paid to the Surviving Corporation. The Surviving Corporation shall be responsible for all costs and fees of the Escrow Exchange Agent and such costs and fees shall not be deducted from the Merger Consideration.