Exchange of Shares and Certificates. (a) As promptly as reasonably practicable following the date of this Agreement, but in no event later than ten (10) Business Days prior to the Closing Date, NewPubco shall appoint ETC (or its applicable Affiliate) as an exchange agent, together with such Israeli financial institution or trust company operating as a subagent and as approved in the Israeli Tax Rulings (the “Exchange Agent”), and enter into an exchange agent agreement (the “Exchange Agent Agreement”) with the Exchange Agent in connection with the Mergers for the purpose of exchanging certificates, if any, representing the SPAC Shares and each SPAC Share held in book-entry form on the stock transfer books of SPAC immediately prior to the Acquisition Merger Effective Time and Company Shares, in either case, for the SPAC Merger Consideration and Acquisition Merger Consideration, as applicable, and on the terms and subject to the other conditions set forth in this Agreement. Notwithstanding the foregoing or anything to the contrary herein, in the event that ETC is unable or unwilling to serve as the Exchange Agent, then SPAC and the Company shall, as promptly as reasonably practicable thereafter, but in no event later than the Closing Date, mutually agree upon an exchange agent (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), and NewPubco shall appoint and enter into the Exchange Agent Agreement with such exchange agent, who shall for all purposes under this Agreement constitute the Exchange Agent. NewPubco shall, and shall cause its Representatives to, reasonably cooperate with SPAC, the Company and the Exchange Agent and their respective Representatives in connection with the appointment of the Exchange Agent, the entry into the Exchange Agent Agreement and the covenants and agreements in this Section 2.9 (including the provision of any information, or the entry into any agreements or documentation, necessary or advisable, as mutually determined in good faith by the Company and SPAC, or otherwise required by the Exchange Agent Agreement for the Exchange Agent to fulfill its duties as the Exchange Agent in connection with the transactions contemplated hereby). The provisions in this Section 2.9 shall be subject in all respects to any requirements or restrictions imposed in the Israeli Tax Rulings. (b) At least three (3) Business Days prior to the Closing Date, NewPubco shall cause the Exchange Agent to mail or otherwise deliver a Letter of Transmittal to the Persons that will be the Company Shareholders and SPAC Shareholders as of immediately prior to the Acquisition Merger Effective Time and SPAC Merger Effective Time, as applicable. (c) At the Acquisition Merger Effective Time and SPAC Merger Effective Time, NewPubco shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the Company Shareholder and SPAC Shareholders, and for exchange in accordance with this Section 2.9 through the Exchange Agent, evidence of NewPubco Ordinary Shares in book-entry form representing the Acquisition Merger Consideration and SPAC Merger Consideration in exchange for the Company Shares and SPAC Shares outstanding immediately prior to the Acquisition Merger Effective Time, in each case after giving effect to any required Tax withholding as provided under this Section 2.9. All shares in book-entry form representing the Acquisition Merger Consideration and SPAC Merger Consideration deposited with the Exchange Agent shall be collectively referred to in this Agreement as the “Exchange Fund”. (d) Each Company Shareholder and SPAC Shareholder whose Company Shares and SPAC Shares have been converted into the right to receive the Acquisition Merger Consideration and SPAC Merger Consideration shall be entitled to receive the portion of the Acquisition Merger Consideration and SPAC Merger Consideration to which he, she or it is entitled upon (i) surrender of a certificate (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal), together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the Exchange Agent or (ii) delivery of an “agent’s message” in the case of SPAC Shares held in book-entry form, together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the exchange Agent. NewPubco shall cause the Exchange Agent pursuant to irrevocable instructions, to pay the Acquisition Merger Consideration and SPAC Merger Consideration out of the Exchange Fund in accordance with this Agreement. Except as contemplated by Section 2.9(c) hereof, the Exchange Fund shall not be used for any other purpose. (e) If a properly completed and duly executed Letter of Transmittal, together with any certificates (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal) or an “agent’s message”, as applicable, and any other documents or agreements required by the Letter of Transmittal, is delivered to the Exchange Agent in accordance with Section 2.9(d) (i) at least two (2) Business Days prior to the Closing Date, then NewPubco, SPAC and the Company shall use commercially reasonable efforts to cause the applicable portion of the Company Merger Consideration and SPAC Merger Consideration to be issued to the applicable Company Shareholder and SPAC Shareholder in book-entry form on the Closing Date, or (ii) less than two (2) Business Days prior to the Closing Date, then NewPubco, SPAC and the Company shall use commercially reasonable efforts to cause the applicable portion of the Acquisition Merger Consideration and SPAC Merger Consideration to be issued to the SPAC Shareholder in book-entry form within two (2) Business Days after such delivery. (f) If any portion of the SPAC Merger Consideration is to be issued to a Person other than the SPAC Shareholder in whose name the surrendered certificate or the transferred SPAC Share in book-entry form is registered, it shall be a condition to the issuance of the applicable portion of the SPAC Merger Consideration that, in addition to any other requirements set forth in the Letter of Transmittal or the Exchange Agent Agreement, (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such SPAC Share in book-entry form shall be properly transferred and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer or similar Taxes required as a result of such consideration being issued to a Person other than the registered holder of such certificate or SPAC Share in book-entry form or establish to the satisfaction of the Exchange Agent that such transfer or similar Taxes have been paid or are not payable. No interest will be paid or accrued on the SPAC Merger Consideration (or any portion thereof). From and after the Acquisition Merger Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.9, each SPAC Share shall solely represent the right to receive the SPAC Merger Consideration. (g) At the Acquisition Merger Effective Time, the stock transfer books of the SPAC shall be closed and there shall be no transfers of SPAC Shares that were outstanding immediately prior to the Acquisition Merger Effective Time. (h) Any portion of the Exchange Fund that remains unclaimed by the SPAC Shareholders twelve (12) months following the Closing Date shall be delivered to NewPubco or as otherwise instructed by NewPubco, and any SPAC Shareholder who has not exchanged his, her or its SPAC Shares for the applicable portion of the SPAC Merger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to NewPubco for the issuance of the applicable portion of the SPAC Merger Consideration, without any interest thereon. None of NewPubco, the Company, the SPAC Surviving Company or any of their respective Affiliates shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat, or similar Law. Any portion of the SPAC Merger Consideration remaining unclaimed by the SPAC Shareholders 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 NewPubco free and clear of any claims or interest of any Person previously entitled thereto. (i) The SPAC Merger Consideration payable upon conversion of the SPAC Shares in accordance with the terms hereof shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to such SPAC Shares. The SPAC Merger Consideration shall be adjusted to reflect appropriately the effect of any share split, reverse share split, share dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to NewPubco Ordinary Shares occurring on or after the date hereof and prior to the Acquisition Merger Effective Time. (j) 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, the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate, the SPAC Merger Consideration that such holder is otherwise entitled to receive pursuant to, and in accordance with, the provisions of this Section 2.9.
Appears in 1 contract
Sources: Business Combination Agreement (Israel Acquisitions Corp)
Exchange of Shares and Certificates. (a) As promptly as reasonably practicable following the date of this Agreement, but in no event later than ten (10) Business Days prior to the Closing Date, NewPubco shall appoint ETC (or its applicable Affiliate) as an exchange agent, together with such Israeli financial institution or trust company operating as a subagent and as approved in the Israeli Tax Rulings Ruling (the “Exchange Agent”), and enter into an exchange agent agreement (the “Exchange Agent Agreement”) with the Exchange Agent in connection with the Mergers for the purpose of exchanging certificates, if any, representing the SPAC Shares and each SPAC Share held in book-entry form on the stock transfer books of SPAC immediately prior to the Acquisition Merger Effective Time and Company SharesTime, in either case, for the SPAC Merger Consideration and Acquisition Merger Consideration, as applicable, and on the terms and subject to the other conditions set forth in this Agreement. Notwithstanding the foregoing or anything to the contrary herein, in the event that ETC is unable or unwilling to serve as the Exchange Agent, then SPAC and the Company shall, as promptly as reasonably practicable thereafter, but in no event later than the Closing Date, mutually agree upon an exchange agent (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), and NewPubco shall appoint and enter into the Exchange Agent Agreement an exchange agent agreement with such exchange agent, who shall for all purposes under this Agreement constitute the Exchange Agent. NewPubco shall, and shall cause its Representatives to, reasonably cooperate with SPAC, the Company SPAC and the Exchange Agent and their respective Representatives in connection with the appointment of the Exchange Agent, the entry into the an Exchange Agent Agreement (including, if necessary or advisable, as determined in good faith by SPAC, by also entering into an Exchange Agent Agreement in the form agreed to by SPAC and the Exchange Agent) and the covenants and agreements in this Section 2.9 (including the provision of any information, or the entry into any agreements or documentation, necessary or advisable, as mutually determined in good faith by the Company and SPAC, or otherwise required by the Exchange Agent Agreement for the Exchange Agent to fulfill its duties as the Exchange Agent in connection with the transactions contemplated hereby). The provisions in this Section 2.9 (shall be subject in all respects to any requirements or restrictions imposed in the Israeli Tax Rulings).
(b) At least three (3) Business Days prior to the Closing Date, NewPubco shall cause the Exchange Agent to mail or otherwise deliver a Letter of Transmittal to the Persons that will be the Company Shareholders and SPAC Shareholders as of immediately prior to the Acquisition Merger Effective Time and SPAC Merger Effective Time, as applicable.
(c) At the Acquisition Merger Effective Time and SPAC Merger Effective Time, NewPubco shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the Company Shareholder and SPAC Shareholders, and for exchange in accordance with this Section 2.9 through the Exchange Agent, evidence of NewPubco Ordinary Shares in book-entry form representing the Acquisition Merger Consideration and SPAC Merger Consideration in exchange for the Company Shares and SPAC Shares outstanding immediately prior to the Acquisition Merger Effective Time, in each case after giving effect to any required Tax withholding as provided under this Section 2.9. All shares in book-entry form representing the Acquisition Merger Consideration and SPAC Merger Consideration deposited with the Exchange Agent shall be collectively referred to in this Agreement as the “Exchange Fund”.
(d) Each Company Shareholder and SPAC Shareholder whose Company Shares and SPAC Shares have been converted into the right to receive the Acquisition Merger Consideration and SPAC Merger Consideration shall be entitled to receive the portion of the Acquisition Merger Consideration and SPAC Merger Consideration to which he, she or it is entitled upon (i) surrender of a certificate (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal), together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the Exchange Agent or (ii) delivery of an “agent’s message” in the case of SPAC Shares held in book-entry form, together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the exchange Agent. NewPubco shall cause the Exchange Agent pursuant to irrevocable instructions, to pay the Acquisition Merger Consideration and SPAC Merger Consideration out of the Exchange Fund in accordance with this Agreement. Except as contemplated by Section 2.9(c) hereof, the Exchange Fund shall not be used for any other purpose.
(e) If a properly completed and duly executed Letter of Transmittal, together with any certificates (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal) or an “agent’s message”, as applicable, and any other documents or agreements required by the Letter of Transmittal, is delivered to the Exchange Agent in accordance with Section 2.9(d) (i) at least two (2) Business Days prior to the Closing Date, then NewPubco, SPAC and the Company shall use commercially reasonable efforts to cause the applicable portion of the Company Merger Consideration and SPAC Merger Consideration to be issued to the applicable Company Shareholder and SPAC Shareholder in book-entry form on the Closing Date, or (ii) less than two (2) Business Days prior to the Closing Date, then NewPubco, SPAC and the Company shall use commercially reasonable efforts to cause the applicable portion of the Acquisition Merger Consideration and SPAC Merger Consideration to be issued to the SPAC Shareholder in book-entry form within two (2) Business Days after such delivery.
(f) If any portion of the SPAC Merger Consideration is to be issued to a Person other than the SPAC Shareholder in whose name the surrendered certificate or the transferred SPAC Share in book-entry form is registered, it shall be a condition to the issuance of the applicable portion of the SPAC Merger Consideration that, in addition to any other requirements set forth in the Letter of Transmittal or the Exchange Agent Agreement, (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such SPAC Share in book-entry form shall be properly transferred and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer or similar Taxes required as a result of such consideration being issued to a Person other than the registered holder of such certificate or SPAC Share in book-entry form or establish to the satisfaction of the Exchange Agent that such transfer or similar Taxes have been paid or are not payable. No interest will be paid or accrued on the SPAC Merger Consideration (or any portion thereof). From and after the Acquisition Merger Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.9, each SPAC Share shall solely represent the right to receive the SPAC Merger Consideration.
(g) At the Acquisition Merger Effective Time, the stock transfer books of the SPAC shall be closed and there shall be no transfers of SPAC Shares that were outstanding immediately prior to the Acquisition Merger Effective Time.
(h) Any portion of the Exchange Fund that remains unclaimed by the SPAC Shareholders twelve (12) months following the Closing Date shall be delivered to NewPubco or as otherwise instructed by NewPubco, and any SPAC Shareholder who has not exchanged his, her or its SPAC Shares for the applicable portion of the SPAC Merger Consideration in accordance with this Section 2.9 prior to that time shall thereafter look only to NewPubco for the issuance of the applicable portion of the SPAC Merger Consideration, without any interest thereon. None of NewPubco, the Company, the SPAC Surviving Company or any of their respective Affiliates shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat, or similar Law. Any portion of the SPAC Merger Consideration remaining unclaimed by the SPAC Shareholders 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 NewPubco free and clear of any claims or interest of any Person previously entitled thereto.
(i) The SPAC Merger Consideration payable upon conversion of the SPAC Shares in accordance with the terms hereof shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to such SPAC Shares. The SPAC Merger Consideration shall be adjusted to reflect appropriately the effect of any share split, reverse share split, share dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to NewPubco Ordinary Shares occurring on or after the date hereof and prior to the Acquisition Merger Effective Time.
(j) If any certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person person claiming such certificate to be lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate, the SPAC Merger Consideration that such holder is otherwise entitled to receive pursuant to, and in accordance with, the provisions of this Section 2.9.
Appears in 1 contract
Sources: Business Combination Agreement (Israel Acquisitions Corp)