Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).
Appears in 2 contracts
Sources: Merger Agreement (Magellan Health Services Inc), Merger Agreement (Magellan Health Services Inc)
Exchange Procedures. Commencing on the 35th day (i) As soon as reasonably practicable after the date hereofEffective Time, but no later than five (5) business days thereafter, Parent shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (each, a “Certificate”, and collectively, the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding shares of Company Options Capital Stock, whose shares were converted into the right to receive cash pursuant to Section 1.6(a), (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) a letter of transmittal in customary form as Parent and the Company may reasonably specify prior to the Closing (which letter shall specify that delivery shall be effected, and risk of loss and title to the Certificates a Certificate shall pass, only at or following upon receipt of such Certificate by the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Paying Agent), and (ii2) instructions for effecting the surrender surrendering of the Certificates in exchange for the cash payable pursuant to Section 2.07(ccash.
(ii) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a cash payment pursuant to Section 1.6(a), without interest by check or wire transfer of same-day funds (if so requested). In the Cash Consideration event of a transfer of ownership of shares of Company Capital Stock that is not registered in the transfer records of the Company, payment pursuant to Section 1.6(a) may be made to such a transferee if the Certificate formerly representing such Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence to the reasonable satisfaction of the Surviving Corporation that any applicable stock transfer Taxes have been paid or are not applicable.
(iii) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of such fact by a stockholder of the Company (a “Company Stockholder”) claiming such Certificate to be paid lost, stolen or destroyed, the Paying Agent will pay such Company Stockholder in immediately available funds) which exchange for such holder has the right to receive pursuant to the provisions lost, stolen or destroyed Certificate, that amount of Section 2.07(c) (provided cash that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate Company Stockholder shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(a). When authorizing such payment in exchange therefor, the Paying Agent 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 the Paying Agent a reasonable form of bond as indemnity, as it shall direct in accordance with (which and amounts prescribed by) its customary practices, policies and procedures, against any claim that may be made against the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. As a further condition to payment with respect to any Certificate that shall include have been lost, stolen or destroyed, Parent may require such Company Stockholder to whom payment is to be made to agree in writing to indemnify and hold harmless Parent with respect to any loss or expense incurred by Parent as a result of the interest payment specified in Section 2.10)loss, theft or destruction of such Certificate.
Appears in 2 contracts
Sources: Merger Agreement (Cash Systems Inc), Merger Agreement (Global Cash Access Holdings, Inc.)
Exchange Procedures. Commencing on the 35th day (i) Promptly (and in any event within two (2) Business Days) after the date hereofEffective Time, the Parent shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock Certificate (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (iA) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.7(g)) to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Paying Agent, and (iiB) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.7(g)) in exchange for the cash Merger Consideration payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinthereto. Upon surrender of a Stock Certificate (or Option Certificate, affidavit of loss in lieu thereof as the case may be, provided in Section 2.7(g)) to the Exchange Agent, together Paying Agent in accordance with the terms of such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly paid in exchange therefor the Cash Consideration (to be paid a cash amount in immediately available fundsfunds equal to (1) which the number of shares of Company Common Stock represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 2.7(g)) multiplied by (2) the Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled.
(ii) Notwithstanding anything to the contrary in this Agreement, any holder of Uncertificated Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder has the right is entitled to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceledthis Article II. In lieu thereof, and (y) the each holder of record of one or more Uncertificated Shares shall upon receipt by the Paying Agent of an “agent’s message” in customary form with respect to any Uncertificated Share be promptly paid the Merger Consideration in respect of such Option Certificate Uncertificated Share and such Uncertificated Share shall forthwith be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)cancelled.
Appears in 2 contracts
Sources: Merger Agreement (Demandware Inc), Agreement and Plan of Merger (Salesforce Com Inc)
Exchange Procedures. Commencing on (a) Mercantile shall designate a person reasonably acceptable to Bancshares to act as Exchange Agent hereunder (the 35th day after "Exchange Agent"). At or prior to the date hereofEffective Time, Parent Mercantile shall deposit, or cause to be deposited, with the Exchange Agent to promptly deliver to each holder Agent, for the ben- efit of the holders of record of a certificate or certificates representing outstanding shares of Bancshares Common Stock (the "Stock Certificates"), for exchange in accordance with this Article I, certificates rep- resenting the Mercantile Common Stock and cash in lieu of any fractional shares issuable pursuant to Section 1.06(ii) (such cash and certificates for Mercantile Common Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to each holder of record of a certificate or instrument which immediately prior to as the "Exchange Fund") in ex- change for outstanding Bancshares Common Stock. As soon as practicable after the Effective Time represented any outstanding Company Options (holders of Certificates shall be instructed to tender such Certificates to the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Ex- change Agent receives a written request (i) pursuant to a letter of transmittal (which that the Exchange Agent shall deliver or cause to be delivered to such holders. Such letters of transmittal shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, pass only at or following the Effective Time and upon delivery deliv- ery of the such Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyAgent.
(b) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant Subject to Section 2.07(c) or 2.101.09, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender that surrenders such Certificate Cer- tificate with a properly completed transmittal letter to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall will be entitled to receive promptly (i) a certificate or cer- tificates representing the number of full shares of Mercan- tile Common Stock into which the Certificate so surrendered shall have been converted pursuant to this Agreement and any distribution theretofore declared and not yet paid with re- spect to such shares of Mercantile Common Stock, without in- terest, and (ii) a check representing the amount of any cash in exchange therefor the Cash Consideration (to be paid in immediately available funds) lieu of fractional shares which such holder has the right to receive in respect of the Certificate surrendered pursuant to this Article I.
(c) The Exchange Agent shall accept Certificates upon compliance with such reasonable terms and conditions as the provisions Exchange Agent may impose to effect an orderly exchange thereof in accordance with customary exchange practices. Certificates shall be appropriately endorsed or accompanied by such instruments of transfer as the Exchange Agent may reasonably require in accordance with customary exchange practices.
(d) Each outstanding Certificate shall until duly surrendered to Mercantile or the Exchange Agent be deemed to evidence ownership of the consideration into which the stock previously represented by such Certificate shall have been converted pursuant to this Agreement.
(e) After the Effective Time, holders of Certifi- ▇▇▇▇▇ shall cease to have rights with respect to the stock previously represented by such Certificates, and their sole rights shall be to exchange such Certificates for the con- sideration provided for in this Agreement. After the Effec- tive Time, there shall be no further transfer on the records of Bancshares of Certificates, and if such Certificates are presented to Bancshares for transfer, they shall be cancelled against delivery of the consideration provided therefor in this Agreement. No dividends declared will be remitted to any person entitled to receive Mercantile Common Stock under this Agreement until such person surrenders the Certificate representing the right to receive such Mercantile Common Stock, at which time such dividends shall be remitted to such person, without interest and less any taxes that may have been imposed thereon. A restrictive legend will be placed on, and stop transfer instructions shall be given to the Ex- change Agent and Mercantile's transfer agent in respect of, certificates representing Mercantile Common Stock issued in exchange for certificates surrendered for exchange by any person constituting an "affiliate" of Bancshares for purposes of Rule 145 of the Securities Act of 1933, as amended (to- gether with the rules and regulations thereunder, the "Secu- rities Act"), and identified in the letter or letters re- ferred to in Section 2.07(c5.05 or otherwise identified as such by Mercantile, until Mercantile has received a written agreement from such person in the form attached as Exhibit C. Mercan- tile and the Exchange Agent shall be entitled to rely upon the stock transfer books of Bancshares to establish the iden- tity of those persons entitled to receive consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, Mercan- tile and the Exchange Agent shall be entitled to deposit any consideration represented thereby in escrow with an indepen- dent third party and thereafter be relieved with respect to any claims thereto. If any certificate representing shares of Mercantile Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the Cer- tificate so surrendered shall be properly endorsed (or other- wise in proper form for transfer) (provided and that Stock Certificates delivered the person request- ing such exchange shall pay to the Exchange Agent at in advance any transfer or other taxes required by reason of the Closing issuance of a certificate representing shares of Mercantile Common Stock in any name other than that of the registered holder of the Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. Any portion of the Exchange Fund that remains un- claimed by the stockholders of Bancshares for 12 months after the Effective Time shall be paid at to Mercantile. Notwithstand- ing the Closing) and foregoing, none of Bancshares, Mercantile, the Stock Certificate so surrendered Exchange Agent or any other person shall immediately be canceled, and (y) the liable to any former holder of such Option shares of Bancshares Common Stock for any amount delivered in good faith to a public official pursuant to applicable aban- doned property, escheat or similar laws. In the event any Certificate shall be entitled to receive (have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be paid lost, stolen or destroyed and, if reasonably required by Mercantile, the posting by such person of a bond in immediately available funds) promptly (but no earlier than such amount as Mercantile may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Cer- tificate, the seventh day after the Closing Date) Exchange Agent will issue in exchange therefor for such lost, stolen or destroyed Certificate the consideration which such holder has the right to receive shares of Mercantile Common Stock, dividends and any cash in lieu of fractional shares deliverable in respect thereof pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)this Agree- ment.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Mark Twain Bancshares Inc/Mo), Agreement and Plan of Reorganization (Mercantile Bancorporation Inc)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior Prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and but in any event not no later than three five (35) Business Days) Days after the Effective Time, Parent the Paying Agent shall cause the Exchange Agent to mail deliver a letter of transmittal and in substantially the instructions described above form attached hereto as Exhibit D (the “Letter of Transmittal”) to each holder Stockholder. At the Effective Time, the Stockholders will surrender the certificates representing their shares of record of a Certificate who has not previously requested such documents from Company Capital Stock (the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate “Company Stock Certificates”) to the Exchange Paying Agent at the Effective Time in accordance for cancellation together with the procedures described hereina duly completed and validly executed Letter of Transmittal. Upon surrender of a Company Stock Certificate or Option Certificate, as the case may be, to the Exchange Agentfor cancellation, together with such letter Letter of transmittalTransmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) subject to the terms of Section 1.9(c), the holder of such Company Stock Certificate shall be entitled to receive promptly have Parent (or an agent designed by Parent) in exchange therefor therefor, deliver to the Cash Consideration (Paying Agent the consideration to be paid in immediately available funds) which such holder has the right to receive is entitled pursuant to Section 1.6 (less the provisions of Escrow Contribution to be deposited into the Escrow Fund with respect to such Stockholder and less any amounts to be withheld pursuant to Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 1.6(f)), and the Company Stock Certificate so surrendered shall immediately be canceledcancelled. Until so surrendered, and (y) the holder of such Option each Company Stock Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day outstanding after the Closing Date) in exchange therefor the consideration which such holder has Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the applicable portion of the Merger Consideration pursuant to Section 2.10 hereof 1.6 in exchange for shares of Company Capital Stock (without interest) into which such shares of Company Capital Stock shall include have been so converted. No portion of the interest payment specified in Section 2.10)Merger Consideration (including such holder’s Escrow Contribution, when payable) will be paid to the holder of any unsurrendered Company Stock Certificate with respect to shares of Company Capital Stock formerly represented thereby or issuable thereunder until the holder of record of such Company Stock Certificate shall surrender such Company Stock Certificate pursuant hereto.
Appears in 2 contracts
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable Promptly (and in any event not later than three within five (35) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled certificate which immediately prior to surrender such Certificate to the Exchange Agent at the Effective Time represented outstanding shares of Company Common Stock (each, a “Certificate”) (i) a letter of transmittal in accordance customary form and as approved by the Company and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration payable with the procedures described hereinrespect thereto. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Merger Consideration (to be paid in immediately available funds) which that such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered this Article IV, after giving effect to the Exchange Agent at the Closing shall be paid at the Closing) any required withholding taxes, and the Stock Certificate so surrendered shall immediately be canceledcancelled. No interest will be paid or accrued on the cash payable upon the surrender of such Certificate or Certificates. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, it will be a condition of payment of the Merger Consideration that the surrendered Certificate be properly endorsed, with signatures guaranteed, or otherwise in proper form for transfer and (y) that the Person requesting such payment will pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the surrendered Certificate or such Option Person will establish to the satisfaction of Parent that such taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 4.2, each Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day deemed at any time after the Closing Date) in exchange therefor the consideration which such holder has Effective Time to represent only the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).upon such
Appears in 2 contracts
Sources: Merger Agreement (Computer Associates International Inc), Merger Agreement (Concord Communications Inc)
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time but in any event not later than five Business Days thereafter, Parent the Surviving Corporation shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options Shares (the "Option “Certificates" and”) and each holder of record of Uncertificated Shares, collectively together with in each case whose Shares were converted into the Stock Certificates, right to receive the "Certificates") from whom the Exchange Agent receives a written request Transaction Consideration pursuant to Section 2.1(b)(i): (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or the Uncertificated Shares shall pass, only at or following the Effective Time and upon delivery of the Certificates or the transfer of the Uncertificated Shares to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ); and (ii) instructions for effecting use in surrendering the surrender Certificates or transfer of the Certificates Uncertificated Shares in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented therebyTransaction Consideration. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each Each holder of record of Shares that have been converted into the right to receive the Transaction Consideration will be entitled to receive the Transaction Consideration in respect of the Company Common Stock represented by a Certificate who has not previously requested such documents from the Exchange Agent. Each holder or Uncertificated Share, upon (x) surrender of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, or (xy) receipt of an “agent’s message” by the holder Exchange Agent (or such other evidence, if any, of such Stock Certificate shall be entitled to receive promptly transfer as the Exchange Agent may reasonably request), in exchange therefor the Cash case of a book-entry transfer of Uncertificated Shares. Upon payment of the Transaction Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock this ARTICLE 2, each Certificate or Uncertificated Share so surrendered shall immediately or transferred will forthwith be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).
Appears in 2 contracts
Sources: Credit Agreement (RhythmOne PLC), Agreement and Plan of Merger and Reorganization (YuMe Inc)
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior will mail to the Effective Time represented any outstanding record holders of the Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Interests (i) a letter Letter of transmittal (which shall specify that delivery shall be effectedTransmittal, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates Company Interests in exchange for the cash payable non-certificated shares of Parent Common Stock represented by book-entry issuable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein1.6(a). Upon surrender of a Stock Company Certificate or Option Certificate, as the case may be, (if applicable) to the Exchange AgentParent for exchange, together with a duly executed Letter of Transmittal and such letter of transmittal, duly executedother documents as may be reasonably required by Parent, (xA) the holder of such Stock Certificate shall Company Interests will be entitled to receive promptly in exchange therefor non-certificated shares of Parent Common Stock represented by book-entry equal to the Cash Consideration (to be paid in immediately available funds) which number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.07(c1.6(a), (B) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate Company Interests so surrendered shall immediately will be canceled, canceled and (yC) the holder Parent will instruct Parent’s transfer agent to issue non-certificated shares of such Option Certificate shall Parent Common Stock represented by book-entry issuable pursuant to Section 1.6(a). Until surrendered as contemplated by this Section 1.8(a), each Company Interest held by a Company Member will be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day deemed, from and after the Closing Date) in exchange therefor the consideration which such holder has Effective Time, to represent only the right to receive pursuant the Merger Consideration. If any Company Certificate (if applicable) will have been lost, stolen or destroyed, Parent will require the owner of such lost, stolen or destroyed Company Certificate to Section 2.10 hereof (which shall include provide an appropriate affidavit and, in Parent’s discretion, to deliver a bond as indemnity against any claim that may be made against Parent or the interest payment specified in Section 2.10)Surviving LLC with respect to such Company Certificate.
Appears in 2 contracts
Sources: Merger Agreement (CWR 1, LLC), Merger Agreement (Trustfeed Corp.)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (and in any event within three (3) Business Days thereafter), Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of Shares represented by a certificate Certificate (other than holders of Excluded Shares) or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Uncertificated Shares (i) with respect to Shares represented by Certificates, a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the such Certificates shall pass, only at or following the Effective Time and upon delivery of such Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 2.2(g)) to the Exchange Agent and which shall be in and, with respect to Uncertificated Shares, such form and have such other provisions letter of transmittal as Parent and the Company may reasonably specify) Exchange Agent customarily provides (if any), and (ii) instructions for effecting the surrender surrendering such Certificates (or affidavits of loss in lieu of the Certificates as provided in exchange for the cash payable pursuant to Section 2.07(c2.2(g)) or 2.10Uncertificated Shares (including instructions for sending an “agent’s message” in customary form (or such other evidence, if any, as the case Exchange Agent may bereasonably request)) to the Exchange Agent. With respect to a Certificate, upon surrender of such Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 2.2(g)) to the Exchange Agent in accordance with the terms of such letter of transmittal or, with respect to Uncertificated Shares, receipt of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request) by the Exchange Agent, the holder of such Certificate or Uncertificated Share shall be entitled to receive in exchange therefor (1) non-certificated shares of Parent Common Stock or Company Options formerly represented thereby. The letter in book-entry form, (2) cash in lieu of transmittal with respect any fractional share of Parent Common Stock pursuant to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (Section 2.2(e) and in any event not later than three (3) Business Days) any dividends or other distributions pursuant to Section 2.2(c), less any required Tax withholdings as provided in Section 2.6. The Certificate or Uncertificated Share so surrendered shall forthwith be cancelled. Until due surrender of a Certificate or Uncertificated Share, each such Certificate or Uncertificated Share shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent shall cause Common Stock (and any distributions or dividends payable pursuant to Section 2.2(c) and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 2.2(e)). In the Exchange Agent event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, the applicable portion of Merger Consideration to mail a letter of transmittal and the instructions described above to each holder of record be exchanged upon due surrender of a Certificate who has not previously requested or Uncertificated Share pursuant to Section 2.1 may be issued and paid to such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender transferee if such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, formerly representing such Shares is presented to the Exchange Agent, together with accompanied by all documents required to evidence and effect such letter transfer, and the Person requesting such payment shall pay any transfer or other Taxes required by reason of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant transfer or establish to the provisions reasonable satisfaction of Section 2.07(c) (provided Parent that Stock Certificates delivered to the Exchange Agent at the Closing shall be such Taxes have been paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)or are not applicable.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ACELYRIN, Inc.), Merger Agreement (Alumis Inc.)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to mail, as promptly deliver as practicable after the Effective Time, to each holder of record of (A) a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options Shares (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom or (B) uncertificated shares of Common Stock which immediately prior to the Exchange Agent receives a written request Effective Time represented Shares (the "Uncertificated Shares")
(i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates such Shares shall pass, only at or following the Effective Time and upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) customary form); and (ii) instructions for effecting the surrender of the Certificates or transfer of the Uncertificated Shares in exchange for the cash payable pursuant to Section 2.07(cappropriate portion of the Merger Consideration. Upon (x) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agentfor cancellation, together with such letter of transmittal, duly executed, and such other customary documents as may be required pursuant to such instructions or (xy) receipt of an "agent's message" by the Exchange Agent (or such other customary evidence, if any, of transfer the Exchange Agent may request) in the case of a book-entry transfer of Uncertificated Shares, the holder of such Stock Certificate or such Uncertificated Shares shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid amount in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration cash which such holder has the right to receive pursuant to Section 2.10 2.01(a) hereof (which shall include the interest payment specified after giving effect to any required Tax (as defined in Section 2.109.03 hereof) withholdings) in respect of the Shares formerly represented by such Certificate or Uncertificated Shares, and the Certificate or Uncertificated Shares so surrendered or transferred shall forthwith be canceled. Parent shall use commercially reasonable efforts to negotiate an agreement with the Exchange Agent which provides that upon the holder of such Certificate or such Uncertificated Shares becoming entitled to receive the payment referred to in the previous sentence of this Section 2.02(b), the Exchange Agent shall make such payment to such holder within ten (10) business days thereafter. No interest will be paid or will accrue on the amount payable upon the surrender of any Certificate or transfer of any Uncertificated Shares. In the event of a transfer of ownership of Shares which is not registered in the transfer records of the Company, the proper amount of cash may be paid to a transferee if the Certificate representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered or transferred as contemplated by this Section 2.02, each Certificate or Uncertificated Share shall be deemed at any time after the Effective Time to represent only the right to receive, upon such surrender, the appropriate portion of the Merger Consideration in respect of Share(s) formerly represented thereby.
Appears in 2 contracts
Sources: Merger Agreement (Computer Access Technology Corp), Merger Agreement (Lecroy Corp)
Exchange Procedures. Commencing on the 35th day (i) As soon as reasonably practicable (and in no event more than five (5) business days) after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Capital Stock, whose shares were converted into the right to receive cash pursuant to Section 1.6(b) hereto, (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) a letter of transmittal in customary form as Parent and the Company may reasonably specify prior to the Closing (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Agent), and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(ccash.
(ii) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (xA) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive a cash payment pursuant to Section 1.6(b) hereof, without interest, and (B) the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately forthwith be canceled.
(iii) In the event that any Certificate shall have been lost, and stolen or destroyed, upon the making of an affidavit of that fact by the stockholder of the Company (ythe “Company Stockholder”) claiming such Certificate to be lost, stolen or destroyed, the holder Exchange Agent will pay such Person in exchange for such lost, stolen or destroyed Certificate, that amount of cash which such Option Certificate Person shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(b). When authorizing such payment in exchange therefor, the Exchange Agent 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 the Exchange Agent a reasonable form of bond as indemnity, as it shall direct in accordance with (which and amounts prescribed by) its customary practices, policies and procedures, against any claim that may be made against the Exchange Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. As a further condition to payment with respect to any Certificate that shall include have been lost, stolen or destroyed, Parent may require the interest Company Stockholder to whom payment specified is to be made to agree in Section 2.10)writing to indemnify and hold harmless Parent with respect to any loss or expense incurred by Parent as a result of the loss, theft or destruction of such Certificate.
Appears in 2 contracts
Sources: Merger Agreement (Bea Systems Inc), Merger Agreement (Plumtree Software Inc)
Exchange Procedures. Commencing on Promptly (and in any event within three Business Days) following the 35th day after the date hereofEffective Time, Parent shall cause instruct the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding shares of Company Options (the "Option Certificates" andCapital Stock, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have contain such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use of such letter of transmittal in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c1.8(a). Each holder of record of book-entry shares (“Uncertificated Shares”) shall not be required to deliver a Certificate or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The an executed letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and receive the instructions described above cash payable pursuant to Section 1.8(a). In lieu thereof, each holder of record of a Certificate who has not previously requested one or more Uncertificated Shares may provide an “agent’s message” in customary form with respect to any Uncertificated Share (or such documents from the Exchange Agent. Each holder other evidence, if any, of a Certificate shall be entitled to surrender such Certificate to transfer as the Exchange Agent at the Effective Time in accordance with the procedures described hereinmay reasonably request). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, Agent together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, or upon receipt by the Exchange Agent of an appropriate agent’s message (xor such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Uncertificated Shares, each holder of such Stock Certificate or such Uncertificated Shares shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided cash amount that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.8(a) in respect of the Company Capital Stock represented by such Certificate or such Uncertificated Shares (which which, for the avoidance of doubt, excludes any Unvested Cash), and the Certificate or Uncertificated Shares so surrendered shall include forthwith be cancelled. Until so surrendered, outstanding Certificates and Uncertificated Shares will be deemed from and after the interest payment specified Effective Time, for all corporate purposes, to evidence only the right to receive cash pursuant to Section 1.8(a), except as provided in Section 2.101.8(e).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Acacia Communications, Inc.), Merger Agreement (Acacia Communications, Inc.)
Exchange Procedures. Commencing on the 35th day At or promptly after the date hereofEffective Time and in any event within two (2) business days after the Effective Time, Parent shall mail or cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Outstanding Company Capital Stock (the "Stock Certificates") and certificates evidencing such shares being referred to each holder of record of herein as a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" “Certificate” and, collectively together with collectively, as “Certificates”), at the Stock Certificatesaddress set forth opposite each such holder’s name on the Payment Spreadsheet, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal in substantially the form attached hereto as Exhibit B (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to Continental Stock Transfer and Trust Company (the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the “Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein”). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, or such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly from the Exchange Agent in exchange therefor therefor, a cash payment equal to the Cash Merger Consideration (to be paid in immediately available funds) which such holder has is entitled pursuant to Section 1.7(a), less the amounts withheld and disbursed in accordance with such Section 1.7(a) and less the amount of cash to be deposited into the Escrow Fund on such holder’s behalf pursuant to Sections 1.7(a) and 1.8(b). Until so surrendered, each Certificate outstanding after the Effective Time will be deemed for all corporate purposes to evidence only the right to receive the consideration set forth in Section 1.7(a). Any portion of the Merger Consideration which remains undistributed to the Stockholders six months after the Effective Time shall be delivered to Parent upon demand, and any Stockholders that have not complied with this Section 1.8(a) shall thereafter look only to Parent for payment of their claim for the Merger Consideration. Neither Parent nor the Surviving Corporation shall be liable to any Stockholder for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by Stockholders three (3) years after the provisions Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity (as defined in Section 2.07(c3.2(a)) (provided that Stock Certificates delivered shall become, to the Exchange Agent at extent permitted by applicable law, the Closing shall be paid at property of the Closing) Surviving Corporation, free and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder clear of such Option Certificate shall be any claims or interest of any person previously entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)thereto.
Appears in 2 contracts
Sources: Stock Exchange and Merger Agreement (Leap Technology Inc / De), Stock Exchange and Merger Agreement (Ivillage Inc)
Exchange Procedures. Commencing on the 35th day Promptly (and in any event no more than three Business Days) after the date hereofEffective Time, Parent the Surviving Corporation shall cause instruct the Exchange Agent to promptly deliver mail to each holder of record of a certificate (or certificates representing outstanding shares of Common Stock (the "Stock Certificates"certificates) and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding shares of Company Options Common Stock (the "Option “Certificates" and, collectively together with the Stock Certificates, the "Certificates"”) from whom the Exchange Agent receives a written request (i) a form of a letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, pass only at or following the Effective Time and upon proper delivery of the Certificates Certificates, together with such letter(s) of transmittal properly completed and duly executed, to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash Merger Consideration payable pursuant to Section 2.07(c) or 2.10, as the case may be, with in respect to of the shares of Company Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested by such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinCertificates. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, Agent together with such letter of transmittal, properly completed and duly executed, (x) and such other documents as may be required pursuant to such instructions, the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Merger Consideration (to be paid payable in immediately available funds) which respect of the shares of Company Common Stock represented by such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) Certificate and the Stock Certificate so surrendered shall immediately forthwith be canceled. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, and (y) the holder Merger Consideration payable in respect of such Option shares of Company Common Stock may be paid to a transferee if the Certificate representing such shares of Company Common Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable transfer Taxes have been paid. Until surrendered as contemplated by this Section 3.2, each Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day deemed at any time after the Closing Date) in exchange therefor the consideration which such holder has Effective Time to represent only the right to receive pursuant to Section 2.10 hereof (which shall include receive, upon such surrender, the interest payment specified Merger Consideration payable in Section 2.10)respect of the shares of Company Common Stock represented by such Certificate.
Appears in 2 contracts
Sources: Merger Agreement (United Industrial Corp /De/), Merger Agreement (Textron Inc)
Exchange Procedures. Commencing on the 35th day (i) As soon as reasonably practical after the date hereofEffective Time, the Parent shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which immediately prior to at the Effective Time represented Time, whose shares were converted into the right to receive the consideration set forth in Section 1.6(b) (and cash in lieu of fractional shares, less any outstanding Company Options amount required to be withheld from such cash under foreign, federal, state or local tax laws), (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the certificates representing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided cash that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(b) (which shall include the interest payment specified and cash in Section 2.10lieu of fractional shares, less any amount required to be withheld from such cash under foreign, federal, state or local tax laws).
(ii) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration (pursuant to Section 1.6(b)) shall be entitled to receive, upon surrender of a Certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, (X) a certificate representing the number of whole shares of Parent Common Stock that such holder is entitled to receive pursuant to Section 1.6(b), (Y) cash that such holder is entitled to receive pursuant to Section 1.6(b) and (Z) if applicable, the cash payment in lieu of fractional shares that such holder is entitled to receive pursuant to Section 1.6(f), and the Certificate so surrendered or transferred shall forthwith be canceled.
(iii) In the event that 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 or cause to be issued to such Person in exchange for such lost, stolen or destroyed Certificate, a new certificate into which the shares of such Person’s Company Common Stock are converted on the Effective Date and deliver or cause to be delivered to such Person cash in immediately available funds that such holder is entitled to receive pursuant to Section 1.6(b) and, if any, Section 1.6(f). When authorizing such issuance in exchange therefor, Parent and/or the Exchange Agent 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 give Parent and/or the Exchange Agent a reasonable form of indemnity against any claim that may be made against Parent or the Exchange Agent with respect to the Certificate alleged to have been lost, stolen or destroyed.
Appears in 2 contracts
Sources: Merger Agreement (Saba Software Inc), Merger Agreement (Centra Software Inc)
Exchange Procedures. Commencing on the 35th day (i) Promptly after the date hereofEffective Time (but no later than five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to promptly deliver will mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") Certificate and to each holder of record of a certificate or instrument which immediately prior Book-Entry Shares, in each case, whose shares were converted into the right to receive the Effective Time represented any outstanding Company Options Merger Consideration pursuant to Section 1.5(b)(i):
(the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) a letter of transmittal (which shall specify will be in customary form and reviewed by the Company prior to delivery thereof) specifying that delivery shall will be effected, and risk of loss and title to the Certificates shall or Book-Entry Shares held by such holder will pass, only at or following the Effective Time and upon delivery of the Certificates or Book-Entry Shares to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and Agent; and
(ii2) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, Merger Consideration with respect to such shares.
(ii) Upon surrender to, and acceptance in accordance with Section 1.8(b)(iii) below by, the Exchange Agent of a Certificate or Book-Entry Shares, the holder will be entitled to the amount of cash payable in respect of the number of shares of Class A Common Stock or Company Options formerly represented thereby. by such Certificate or Book-Entry Shares surrendered under this Agreement.
(iii) The letter Exchange Agent will accept Certificates or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange of transmittal the Certificates and Book-Entry Shares in accordance with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable customary exchange practices.
(iv) From and in any event not later than three (3) Business Days) after the Effective Time, Parent no further transfers may be made on the records of the Company or its transfer agent of Certificates or Book-Entry Shares and if such Certificates or Book-Entry Shares are presented to the Company for transfer, they will be canceled against delivery of the Merger Consideration allocable to the shares of Class A Common Stock represented by such Certificates or allocable to such Book-Entry Shares.
(v) If any Merger Consideration is to be remitted to a name other than that in which the Certificate or Book-Entry Share is registered, no Merger Consideration may be paid in exchange for such surrendered Certificate or Book-Entry Share unless:
(1) either (A) the Certificate so surrendered is properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, or (B) the Book-Entry Share is properly transferred; and
(2) the Person requesting such payment shall cause pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the Certificate or Book-Entry Share or establish to the satisfaction of the Exchange Agent to mail a letter of transmittal that such tax has been paid or is not payable.
(vi) Until surrendered as contemplated by this Section 1.8 and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at any time after the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Time, each Certificate or Option Certificate, as the case may be, Book-Entry Share held by Public Stockholders (other than Dissenting Shares) will be deemed to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has represent only the right to receive pursuant upon such surrender the Merger Consideration allocable to the provisions of shares represented by such Certificate or Book-Entry Shares as contemplated by Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall 1.5(b). No interest will be paid at or accrued for the Closing) and benefit of holders of Certificates or Book-Entry Shares on the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder Merger Consideration payable in respect of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Certificates or Book-Entry Shares.
Appears in 2 contracts
Sources: Merger Agreement (Sprint Nextel Corp), Merger Agreement (Clearwire Corp /DE)
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time, Parent Acquiror shall cause instruct the Exchange Agent to promptly deliver mail to each holder of record of a certificate certificates or certificates representing instruments evidencing the Company Common Stock, in each case, that were issued and outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificatescollectively, the "“Certificates"”) from whom and each holder of record of uncertificated shares of Company Common Stock represented by book-entry shares (“Uncertificated Shares”), which were in each case converted into the Exchange Agent receives a written request right to receive cash pursuant to Section 2.1(b)(i), (i) a letter of transmittal in customary form (which that shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Certificates or Uncertificated Shares in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereincash. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Certificates for cancellation to the Exchange Agent, or upon receipt by the Exchange Agent of an appropriate agent’s message in the case of book-entry transfer of Uncertificated Shares, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other customary documents as may reasonably be required by the Exchange Agent (x) including any required Form W-9 or Form W-8), the holder holders of such Stock Certificate Certificates or Uncertificated Shares shall be entitled to receive promptly in exchange therefor a check in the Cash Consideration (to be paid in immediately available funds) which amount of U.S. dollars that such holder has holders have the right to receive pursuant to Section 2.1(b)(i), subject to Section 2.3(b), and the provisions Certificates so surrendered and such Uncertificated Shares shall forthwith be canceled. Until so surrendered, outstanding Certificates and Uncertificated Shares will be deemed from and after the Effective Time, for all corporate purposes, to evidence only the right to receive upon surrender thereof a check in the amount of U.S. dollars that the holders thereof have the right to receive pursuant to Section 2.07(c) (provided that Stock Certificates delivered 2.1(b)(i), subject to the Exchange Agent at the Closing shall Section 2.3(b). No interest will be paid at or accrued on any cash payable to holders of Certificates or Uncertificated Shares. In the Closing) and event of a transfer of ownership of shares of Company Common Stock that is not registered in the Stock Certificate so surrendered shall immediately be canceledtransfer records of the Company, and (y) a check in the amount of U.S. dollars that the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder thereof has the right to receive pursuant to Section 2.10 hereof (which shall include 2.1(b)(i) may be issued to a transferee if the interest payment specified in Section 2.10)Certificate representing such shares of Company Common Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer Taxes have been paid.
Appears in 2 contracts
Sources: Merger Agreement (Varian Inc), Merger Agreement (Agilent Technologies Inc)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause instruct the Exchange Paying Agent to mail, promptly deliver following the Effective Time, to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which book-entry shares (“Uncertificated Shares”) that, in each case, immediately prior to the Effective Time represented any outstanding shares of Company Options (the "Option Certificates" andCapital Stock, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the any Certificates surrendered therewith shall pass, only at or following the Effective Time and upon proper delivery of the such Certificates to the Exchange Paying Agent and which shall be in such form and have contain such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use of such letter of transmittal in effecting the surrender of the Certificates and/or Uncertificated Shares in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein2.7(a). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, Paying Agent together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) and such other documents as may reasonably be required by the Paying Agent, or upon receipt by the Paying Agent of an appropriate agent’s message in the case of book-entry transfer of Uncertificated Shares, each holder of such Stock Certificate or such Uncertificated Shares shall be entitled to receive promptly in exchange therefor a check for the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided cash amount that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which 2.7(a) in respect of the Company Capital Stock represented by such Certificate or such Uncertificated Shares, and the Certificate or Uncertificated Shares so surrendered shall include forthwith be cancelled. Until so surrendered, outstanding Certificates and Uncertificated Shares will be deemed from and after the interest payment specified Effective Time, for all corporate purposes, to evidence only the right to receive the cash payable in respect thereof pursuant to Section 2.7(a), except as provided in Section 2.102.7(e).
Appears in 2 contracts
Sources: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss Technologies Inc)
Exchange Procedures. Commencing on (a) At the 35th day after Effective Time of the date hereofMerger, Parent shall cause deposit with the Exchange Agent for the benefit of the holders of shares of Company Stock outstanding immediately prior to the Effective Time of the Merger, for exchange in accordance with this Section 2.5 through the Exchange Agent, cash in the amount of the aggregate Merger Consideration payable to such holders of Company Stock pursuant to Section 2.2 in exchange for their shares of Company Stock (collectively, the “Exchange Fund”). Such amounts may be invested by the Exchange Agent as directed by Merger Sub or, after the Effective Time of the Merger, the Surviving Corporation; provided that such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs.
(b) Parent shall direct the Exchange Agent to mail, promptly deliver after the Effective Time of the Merger, to each holder of record of shares of Company Stock which are represented by (x) a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time of the Merger represented any outstanding shares of Company Options Stock (the "Option “Certificates" and”) or (y) an entry to that effect in the shareholder records maintained on behalf of Company by the Company stock transfer agent (the “Book Entry Shares”), collectively together with whose shares were converted into the Stock Certificatesright to receive the Merger Consideration pursuant to Section 2.2 hereof, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates (if any) shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates or authorizing transfer and cancellation of Book Entry Shares in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinMerger Consideration. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, or authorizing transfer of Book Entry Shares, together with such letter of transmittal, duly executed, (x) the holder of such shares of Company Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash amount of the Merger Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 2.2 hereof (which less any withholding Taxes pursuant to Section 2.11), and any Certificate so surrendered shall include forthwith be canceled. Until surrendered as contemplated by this Section 2.5, each Certificate and any Book Entry Shares shall be deemed at any time after the interest payment specified Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration to be paid in consideration therefor upon surrender of such Certificate or transfer of the Book Entry Shares, as the case may be, as contemplated by this Section 2.102.5. Notwithstanding anything to the contrary set forth herein, if any holder of shares of Company Stock that are not Book Entry Shares should be unable to surrender the Certificates for such shares, because they have been lost or destroyed, such holder shall, if required by Parent or Exchange Agent, deliver in lieu thereof a bond in form and substance and with surety reasonably satisfactory to Parent and shall be entitled to receive the Merger Consideration to be paid in consideration therefor in accordance with Section 2.2 hereof (less any withholding Taxes pursuant to Section 2.11).
(c) No interest shall be paid or accrued for the benefit of holders of the Certificates or Book Entry Shares on the Merger Consideration payable in respect thereof. If payment of the Merger Consideration 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 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 Parent that such Tax either has been paid or is not applicable.
(d) If, after the Effective Time of the Merger, Certificates or Book Entry Shares are presented to Parent for any reason, they shall be canceled and exchanged as provided in this Agreement, subject to the other provisions of this Article 2.
(e) Any portion of the Exchange Fund which remains undistributed to the former stockholders of Company following the passage of twelve months after the Effective Time of the Merger shall be delivered (together with any income received with respect thereto) to the Surviving Corporation, upon demand, and any former stockholders of Company who have not theretofore complied with this Section 2.5 shall thereafter look only to the Surviving Corporation and/or Parent, subject to any applicable abandoned property, escheat or similar law, only as general creditors thereof for payment of their claim for the Merger Consideration payable in consideration for any Certificate or transfer of any Book Entry Shares.
(f) Any portion of the Exchange Fund remaining unclaimed as of a date which is 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 applicable law, become the property of Parent free and clear of any claims or interests of any Person previously entitled thereto. Except as otherwise required by law, none of the Exchange Agent, Parent, Company or the Surviving Corporation shall be liable to any former holder of shares of Company Stock or any other Person for any consideration from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (CNS Inc /De/), Merger Agreement (Glaxosmithkline PLC)
Exchange Procedures. Commencing on the 35th day after the date hereof(a) In accordance with Section 1.08, Parent shall cause the Exchange Agent to promptly deliver to each holder holders of record of a certificate or certificates representing outstanding formerly repre- senting shares of Seller Common Stock (the "Stock Certificates") and shall be instructed to each holder of record of a certificate or instrument which immediately prior tender such Certificates to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) Buyer pursu- ant to a letter of transmittal (that Buyer shall deliver or cause to be delivered to such holders, which letter of trans- mittal shall be included within the election forms distributed pursuant to Section 1.08. Such letters of transmittal shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, pass only at or following the Effective Time and upon delivery of the such Certificates to Buyer or the Ex- change Agent (as defined below).
(b) Subject to Section 1.12, after the Effective Time, each previous holder of a Certificate that surrenders such Certificate to the Buyer or, at the election of Buyer, an exchange agent designated by Buyer (the "Exchange Agent") will, upon acceptance thereof by Buyer or the Exchange Agent and which shall Agent, be in such form and have such other provisions as Parent and en- titled to a certificate or certificates representing the Company may reasonably specify) and (ii) instructions for effecting the surrender number of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) full shares of Buyer Common Stock or 2.10cash, as the case may be, into which the Certificate so surrendered shall have been converted pursuant to this Agreement and any distribution theretofore declared and not yet paid with respect to such shares of Buyer Common Stock, without interest.
(c) Buyer or, at the election of Buyer, the Exchange Agent shall accept Certificates upon compliance with such rea- sonable terms and conditions as Buyer or the Exchange Agent may impose to effect an orderly exchange thereof in accordance with customary exchange practices. Certificates shall be ap- propriately endorsed or accompanied by such instruments of transfer as Buyer or the Exchange Agent may require.
(d) Each outstanding Certificate shall until duly surrendered to Buyer or the Exchange Agent be deemed to evi- dence ownership of the consideration into which the stock pre- viously represented by such Certificate shall have been con- verted pursuant to this Agreement.
(e) After the Effective Time, holders of Certifi- ▇▇▇▇▇ shall cease to have rights with respect to the shares of Common Stock or Company Options formerly stock pre- viously represented therebyby such Certificates, and their sole rights shall be to exchange such Certificates for the consideration provided for in this Agreement. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after After the Effective Time, Parent there shall cause be no further transfer on the records of Seller of Certificates, and if such Certificates are presented to Seller for transfer, they shall be cancelled against delivery of the consideration provided therefor in this Agreement. Buyer shall not be obligated to deliver the consideration to which any former holder of Seller Common Stock is entitled as a result of the Merger until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted to any person entitled to receive Buyer Common Stock under this Agree- ment until such person surrenders the Certificate representing the right to receive such Buyer Common Stock, at which time such dividends shall be remitted to such person, without inter- est and less any taxes that may have been imposed thereon. Certificates surrendered for exchange by any person constitut- ing an "affiliate" of Seller for purposes of Rule 145 of the Securities Act of 1933, as amended (together with the rules and regulations thereunder, the "Securities Act"), shall not be exchanged for certificates representing Buyer Common Stock un- til Buyer has received a written agreement from such person in the form attached as Exhibit C. Neither the Exchange Agent nor any party to mail this Agreement nor any affiliate thereof shall be liable to any holder of stock represented by any Certificate for any consideration paid to a letter of transmittal public official pursuant to applicable abandoned property, escheat or similar laws. Buyer and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate Agent shall be entitled to surrender such Certificate rely upon the stock transfer books of Seller to establish the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender identity of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be those persons entitled to receive promptly consideration specified in exchange therefor the Cash Consideration (to be paid in immediately available funds) this Agreement, which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing books shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).conclusive with respect
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Mercantile Bancorporation Inc), Agreement and Plan of Reorganization (Roosevelt Financial Group Inc)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent ------------------- shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Common Stock, whose shares were converted into the right to receive shares of Parent Common Stock (the "Option Certificates" andand cash in lieu of fractional shares) pursuant to Section 1.6, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the certificates representing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and cash in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter lieu of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinfractional shares). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate representing the Cash Consideration (to be paid number of whole shares of Parent Common Stock and payment in immediately available funds) which such holder has the right to receive pursuant to the provisions lieu of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration fractional shares which such holder has the right to receive pursuant to Section 2.10 hereof (1.6 and any dividends or other distributions pursuant to Section 1.7(d), and the Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Certificate that, prior to the Effective Time, represented shares of Company Common Stock will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, to evidence the ownership of the number of full shares of Parent Common Stock into which such shares of Company Common Stock shall include have been so converted and the interest payment specified right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 2.101.6 and any dividends or other distributions pursuant to Section 1.7(d).
Appears in 2 contracts
Sources: Merger Agreement (E Trade Group Inc), Merger Agreement (E Trade Group Inc)
Exchange Procedures. Commencing on Prior to the 35th day after the date hereofClosing Date, Parent shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") Stockholder and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) Warrantholder a letter of transmittal (which shall specify that delivery shall be effectedthe “Letter of Transmittal”) in the form attached hereto as Annex I. Following the consummation of the Merger and upon (x) in the case of Company Stock Certificate(s) or a Company Warrant(s), and risk surrender of, as applicable, a Company Stock Certificate(s) or a Company Warrant(s) (collectively, the “Certificates”) (or affidavits of loss and title to in accordance with Section 1.8(b) in lieu thereof) for cancellation or (y) in the Certificates shall passcase of Book Entry Shares, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time Book Entry Shares in accordance with the procedures described herein. Upon surrender set forth in the Letter of a Stock Certificate or Option CertificateTransmittal, as the in each case may be, to the Exchange Paying Agent, or such other agent or agents as may be appointed by Parent, together with such letter a duly completed and validly executed Letter of transmittalTransmittal, duly executed, (x) the holder of such Stock Certificate Certificate(s) or Book Entry Share(s) shall be entitled to receive promptly in exchange therefor therefor, the Cash Consideration amount of cash to which such holder is entitled pursuant to Section 1.6(b) or Section 1.6(d), as applicable, for (i) each share of Company Capital Stock formerly represented by such Certificate(s) or such Book Entry Share(s) or (ii) each Company Warrant represented by such Certificate(s), and, in each case, the Certificate(s) or Book Entry Share(s) so surrendered shall be cancelled. Parent shall cause the Paying Agent to be paid in pay, by wire transfer of immediately available funds, to the holder of each such Certificate(s) (or affidavits of loss in accordance with Section 1.8(b) in lieu thereof) or Book Entry Share(s), (A) within two Business Days after the later to occur of (1) the Closing and (2) the Paying Agent’s receipt of such Certificate(s) (or affidavits of loss in accordance with Section 1.8(b) in lieu thereof) or such Book Entry Share(s), the portion of the Aggregate Stockholder Closing Proceeds or Aggregate Warrant Closing Proceeds, as applicable, to which such holder has is entitled pursuant to Section 1.6(b) or Section 1.6(d), as applicable, and (B) within two Business Days after the later to occur of (1) the determination of the Final Merger Consideration pursuant to Section 1.9 and (2) the Paying Agent’s receipt of such Certificate(s) (or affidavits of loss in accordance with Section 1.8(b) in lieu thereof) or such Book Entry Share(s), the portion of the sum of (I) the Positive Adjustment (if any), (II) the Remaining Adjustment Escrow Fund (if any) and (III) the Remaining Seller Representative Escrow Fund (if any), in each case to which such holder is entitled pursuant to Section 1.6(b); provided, that Parent shall use commercially reasonable efforts to cause the Paying Agent to pay to each holder of Certificate(s) who delivers such Certificate(s) (or affidavits of loss in accordance with Section 1.8(b) in lieu thereof) or Book Entry Share(s) and a fully completed and signed Letter of Transmittal to the Paying Agent prior to the Closing Date, such holder’s portion of the Aggregate Stockholder Closing Proceeds or Aggregate Warrant Closing Proceeds pursuant to Section 1.6(b) or Section 1.6(d), as applicable, on the Closing Date. Until so surrendered, each outstanding Certificate or Book Entry Share will be deemed for all corporate purposes to evidence only the right to receive pursuant to the provisions amount of Section 2.07(c) (provided that cash into which such shares of Company Capital Stock Certificates delivered to the Exchange Agent at the Closing or Company Warrant, as applicable, shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)exchanged.
Appears in 2 contracts
Exchange Procedures. Commencing on the 35th day (i) Promptly (and in any event within three (3) Business Days) after the date hereofEffective Time, the Parent shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock Certificate (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (iA) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.7(g)) to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Paying Agent, and (iiB) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.7(g)) in exchange for the cash Merger Consideration payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinthereto. Upon surrender of a Stock Certificate (or Option Certificate, affidavit of loss in lieu thereof as the case may be, provided in Section 2.7(g)) to the Exchange Agent, together Paying Agent in accordance with the terms of such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly paid in exchange therefor the Cash Consideration (to be paid a cash amount in immediately available fundsfunds equal to (1) which the number of shares of Company Common Stock formerly represented by such holder has Certificate (or affidavit of loss in lieu thereof as provided in Section 2.7(g)) multiplied by (2) the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) Merger Consideration, and the Stock Certificate so surrendered shall immediately forthwith be canceledcancelled.
(ii) With respect to Uncertificated Shares, the Parent and the Company shall cooperate to establish procedures with the Paying Agent and the holders of Uncertificated Shares to ensure that the Paying Agent will transmit to such holder or its nominees, upon surrender of Uncertificated Shares held of record by such holder or its nominees in accordance with customary surrender procedures (including receipt by the Paying Agent of an “agent’s message” in customary form and/or such other evidence, if any, of transfer as the Paying Agent may reasonably request), the Merger Consideration pursuant to and in accordance with the terms of this Agreement, and (y) the holder of each such Option Certificate Uncertificated Share shall forthwith be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)cancelled.
Appears in 2 contracts
Sources: Merger Agreement (Cynosure Inc), Merger Agreement (Hologic Inc)
Exchange Procedures. Commencing on the 35th day (i) As soon as reasonably practicable after the date hereofEffective Time and in any event not later than the second Business Day following the Closing Date, Parent shall cause the Exchange Agent to promptly deliver mail, and Parent shall and shall cause the Exchange Agent to make otherwise available, to each holder of record of a certificate one or certificates representing outstanding more shares of Company Common Stock (the "Stock Certificates") and to each holder as of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" andTime, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal to be used to effect the exchange of such Company Common Stock for the Merger Consideration payable in respect thereof, along with instructions for using such letter of transmittal to effect such exchange. The letter of transmittal (which or the instructions thereto) shall specify that delivery shall be effected, and risk of loss and title to the Certificates shares of Company Common Stock shall pass, only at or following the Effective Time and upon delivery thereof together with (A) delivery of the Certificates corresponding Company Certificate to the Exchange Agent and which or (B) receipt by the Exchange Agent of an “agent’s message” with respect to Book Entry Shares. Such letter of transmittal shall be in such customary form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable , which, unless otherwise determined by Parent pursuant to Section 2.07(c) or 2.102.1(c)(i), as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to include provisions requiring each holder of record of a Company Certificate who has (or the beneficial owner thereof through appropriate and customary documentation and instructions) to certify that such holder or beneficial owner (1) is either (a) not previously requested such documents from a resident of the United Kingdom or (b) if a resident of the United Kingdom, is a “qualified investor” within the meaning of Section 86(7) of the UK Financial Services & Markets ▇▇▇ ▇▇▇▇ (“UK FSMA”) or (2) is a resident of the United Kingdom and not a “qualified investor” within the meaning of Section 86(7) of UK FSMA. Parent and the Exchange Agent. Each holder of a Certificate Agent shall be entitled to conclusively rely on such certifications without further inquiry but may conduct such inquiries as deemed appropriate in their sole discretion.
(ii) Upon surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Company Certificate for cancellation, together with a duly completed and executed letter of transmittal and any other documents reasonably required by Parent or Option Certificate, as the case may be, to the Exchange Agent, together or receipt by the Exchange Agent of an “agent’s message” with such letter of transmittal, duly executedrespect to Book Entry Shares, (xA) the holder of such Company Common Stock Certificate shall be entitled to receive promptly in exchange therefor a certificated American Depositary Receipt evidencing, or an uncertificated Parent ADS book-entry representing, the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions number of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceledwhole Parent ADSs, if any, and (y) cash portion of the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which Merger Consideration that such holder has the right to receive pursuant to Section 2.10 hereof 2.1(c) (which shall include the interest payment specified along with any cash in lieu of fractional Parent ADSs as provided in Section 2.102.2(e) and any unpaid dividends and distributions with respect to such Parent ADSs as provided in Section 2.2(c)); and (B) the Company Certificate or Book-Entry Shares represented by the “agent’s message” so surrendered shall forthwith be cancelled. No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional Parent ADSs or unpaid dividends and distributions, if any, payable to holders of Company Common Stock.
(iii) In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, the Merger Consideration payable in respect of such shares of Company Common Stock (along with any cash in lieu of fractional Parent ADSs as provided in Section 2.2(e) and any unpaid dividends and distributions with respect to such Parent ADSs as provided in Section 2.2(c)) may be paid to a transferee if the Company Certificate representing such shares of Company Common Stock is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer, including such signature guarantees as Parent or the Exchange Agent may request, and to evidence that any applicable stock transfer taxes have been paid.
Appears in 2 contracts
Sources: Merger Agreement (Ensco PLC), Merger Agreement (Pride International Inc)
Exchange Procedures. Commencing on (A) On the 35th day Business Day before the Closing Date, IBG shall deposit or cause to be deposited in trust with Equiniti Trust Company or another bank or trust company mutually agreeable to IBG and GBNK (the “Exchange Agent”), for the benefit of the holders of the GBNK Shares (i) certificates for shares or, at IBG’s option, evidence of shares in book entry form, including via the direct registration system (collectively, referred to herein as “certificates”) representing the aggregate number of IBG Shares which the holders of GBNK Shares are entitled to receive pursuant to Section 1.05 and (ii) any cash payable in lieu of fractional shares pursuant to Section 1.05(C) (such IBG Shares and cash described in the foregoing clauses (i) and (ii), “Exchange Fund”).
(B) As soon as practicable after the date hereofEffective Time, Parent but in no event more than five Business Days after the Effective Time, the Resulting Corporation shall use commercially reasonable efforts to cause the Exchange Agent to promptly deliver mail to each record holder of record of a an outstanding certificate or certificates representing outstanding shares of Common Stock GBNK Shares (the "Stock Certificates") and each, a “Certificate”, it being understood that any reference herein to each holder of record of a certificate or instrument which immediately prior “Certificate” shall be deemed to include reference to book-entry accounts relating to the Effective Time represented any outstanding Company Options (the "Option Certificates" andownership of GBNK Shares), collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a form letter of transmittal (which shall will specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) contain instructions for use in effecting the surrender of the Certificates for payment therefor. IBG shall provide a draft of the form of letter of transmittal to GBNK no later than 10 days prior to the Closing Date. The form and substance of the letter of transmittal and any associated cover letter shall be mutually acceptable to IBG and GBNK before such transmittal materials are mailed to the holders of the Certificates. Upon surrender to the Exchange Agent of a Certificate, together with such letter of transmittal properly completed and duly executed (the “Transmittal Materials”), the holder of such Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of IBG Shares equal to the product of (x) the Exchange Ratio, multiplied by (y) the number of GBNK Shares represented by the Certificate, and (ii) an amount of cash as payment in lieu of the issuance of fractional IBG Shares calculated in accordance with Section 1.05(C), and such Certificate shall forthwith be canceled. Until surrendered in accordance with this Section 2.04, each Certificate (other than Certificates representing Cancelled Shares) shall from and after the Effective Time represent for all purposes only the right to receive the Merger Consideration without any interest thereon. Promptly after receipt of the Transmittal Materials, the Resulting Corporation will use commercially reasonable efforts to cause the Exchange Agent to review the Transmittal Materials in order to verify proper completion and execution thereof. As soon as practicable after the Effective Time and the surrender of a Certificate to the Exchange Agent, together with properly completed and executed Transmittal Materials, the Resulting Corporation will use commercially reasonable efforts to cause the Exchange Agent to promptly deliver the Merger Consideration.
(C) After the Effective Time, the share transfer ledger of GBNK shall be closed and there shall be no transfers on the share transfer books of GBNK of the GBNK Shares which were outstanding immediately before such time of filing. If, after the Effective Time, Certificates are presented to the Resulting Corporation, they shall be promptly presented to the Exchange Agent and exchanged as provided in this Section 2.04.
(D) No dividends or other distributions declared after the Effective Time with respect to IBG Shares and payable to the holders thereof shall be paid to the holder of a Certificate until such holder surrenders such Certificate to the Exchange Agent in accordance with this Section 2.04. After the surrender of a Certificate in accordance with this Section 2.04, the holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which had become payable after the Effective Time with respect to the IBG Shares represented by such Certificate.
(E) Any portion of the Exchange Fund that remains unclaimed by the stockholders of GBNK for twelve months after the Exchange Agent mails the letter of transmittal pursuant to this Section 2.04 shall be delivered to the Resulting Corporation upon demand, and any stockholders of GBNK who have not theretofore complied with the exchange procedures in this Section 2.04 shall look to the Resulting Corporation only, and not the Exchange Agent, for the payment of the Merger Consideration in respect of such shares. If outstanding Certificates for GBNK Shares are not surrendered or the payment for them is not claimed before the date on which such IBG Shares or cash would otherwise escheat to any governmental unit or agency, the unclaimed items shall, to the extent permitted by abandoned property or any other applicable Law, become the property of the Resulting Corporation (and to the extent not in its possession shall be delivered to it), free and clear of all claims or interest of any Person previously entitled to such property.
(F) If any IBG Shares are to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the Certificate so surrendered shall be appropriately endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form (reasonably satisfactory to the Resulting Corporation) 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 issuance of a certificate representing IBG Shares in any name other than that of the registered holder of the Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or not payable. The Exchange Agent, IBG or the Resulting Corporation shall be entitled to deduct and withhold from any portion of the Merger Consideration or other consideration payable pursuant to Section 2.07(c) under this Agreement such amounts as the Exchange Agent, IBG or 2.10the Resulting Corporation, as the case may be, is required to deduct and withhold under the Code, or any provision of state, local or foreign tax Law, with respect to the shares making of Common Stock or Company Options formerly represented therebysuch payment. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims To the holders thereof may have against Parent or extent that the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from amounts are so withheld by the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to , IBG or the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option CertificateResulting Corporation, 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 GBNK Shares or GBNK RSAs in respect of whom such deduction and withholding was made by the Exchange Agent, together with such letter IBG or the Resulting Corporation, as the case may be.
(G) None of transmittalIBG, duly executedthe Resulting Corporation, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to GBNK, the Exchange Agent at the Closing or any other Person shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the liable to any former holder of GBNK Shares for any IBG Share (or dividends or distributions with respect thereto) or cash properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(H) If any Certificate has been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the Person claiming such Option Certificate shall be entitled to receive (to be paid lost, stolen or destroyed and, if required by IBG, the Resulting Corporation or the Exchange Agent, the posting by such Person of a bond in immediately available fundssuch amount as IBG, the Resulting Corporation or the Exchange Agent may direct (not to exceed the amount of Merger Consideration relating to the relevant missing Certificate) promptly (but no earlier than as indemnity against any claim that may be made against IBG, the seventh day after Resulting Corporation, Independent Bank, or GBNK with respect to such Certificate, the Closing Date) Exchange Agent will issue in exchange therefor for such lost, stolen or destroyed Certificate the consideration which such holder has the right to receive Merger Consideration deliverable in respect thereof pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Independent Bank Group, Inc.), Agreement and Plan of Reorganization (Guaranty Bancorp)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record as of the Effective Time a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding shares of Company Options (Common Stock whose shares were converted into the "Option Certificates" and, collectively together with right to receive a pro rata portion of the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Merger Consideration (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may shall reasonably specify) and (ii) instructions for effecting the surrender exchange of the Certificates in exchange for a pro rata portion of the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinMerger Consideration. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittaltransmittal duly completed and validly executed in accordance with the instructions thereto, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a pro rata portion of the Merger Consideration in accordance with Section 2.01, and the Certificate so surrendered shall forthwith be cancelled. Until so surrendered, each outstanding Certificate will be deemed from and after the Effective Time, for all corporate purposes, subject to Section 2.02(d) as to the payment of dividends, to evidence only the ownership of the number of full shares of Parent Common Stock and the aggregate Per Share Cash Consideration (to be paid in immediately available funds) Amount into which the shares of Company Common Stock evidenced by such holder has Certificate shall have been so converted and the right to receive pursuant to an amount in cash in lieu of the provisions issuance of any fractional shares in accordance with Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing2.01(f) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive any dividends or distributions payable pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.102.02(d).
Appears in 2 contracts
Sources: Merger Agreement (Hannaford Brothers Co), Merger Agreement (Food Lion Inc)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, and in no event more than three (3) Business Days thereafter, Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record (as of the Effective Time) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates") and to each holder of record of a certificate or instrument ”), which immediately prior to the Effective Time represented any outstanding shares of Company Options (Common Stock whose shares were converted into the "Option Certificates" and, collectively together with the right to receive shares of Parent Common Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request pursuant to Section 2.5: (i) 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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have contain such other customary provisions as Parent and the Company may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable certificates representing shares of Parent Common Stock and any dividends or other distributions pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares 2.6(d). Upon surrender of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder holders of such Stock Certificate Certificates shall be entitled to receive promptly in exchange therefor certificates representing the Cash Consideration (Closing Shares, less the shares of Parent Common Stock representing the Holdback Escrowed Shares referred to in Section 2.14, and any dividends or distributions payable pursuant to Section 2.6(d), and the Certificates so surrendered shall forthwith be paid in immediately available funds) which such holder has canceled. Until so surrendered, outstanding Certificates will be deemed, from and after the Effective Time, to evidence only the right to receive pursuant to the provisions applicable number of Section 2.07(c) (provided that shares of Parent Common Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive issuable or distributable pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.102.5(a).
Appears in 2 contracts
Sources: Merger Agreement (Israel Technology Acquisition Corp.), Merger Agreement (Israel Technology Acquisition Corp.)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (and in no event later than three (3) business days following the Effective Time), Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record (as of the Effective Time) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock CertificatesCERTIFICATES") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Common Stock or Company Preferred Stock whose shares were converted into the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates"right to receive cash pursuant to Section 1.6(a) from whom the Exchange Agent receives a written request or Section 1.6(b): (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration to which the holder of such Certificate is entitled pursuant to Section 2.07(c1.6(a) or 2.10, as Section 1.6(b) (without limiting the case may be, with respect to the shares effect of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinSection 1.7(e)). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Certificates for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Exchange Agent, (x) the holder of such Stock Certificate Certificates shall be entitled to receive promptly (and in exchange therefor the Cash Consideration no event later than three (to be paid in immediately available funds3) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day business days after the Closing Datereceipt thereof) in exchange therefor the consideration Merger Consideration to which the holder of such holder has the right to receive certificate is entitled pursuant to Section 2.10 hereof 1.6(a) or Section 1.6(b) (which less any withholding amount with respect to the shares of Company Common Stock or Company Preferred Stock held by such holder as provided by Section 1.7(e)), and the Certificates so surrendered shall include forthwith be canceled. No interest shall accrue or be paid on the interest payment specified in Section 2.10)amounts payable pursuant to this Article I upon surrender of the Certificates.
Appears in 2 contracts
Sources: Merger Agreement (Probusiness Services Inc), Merger Agreement (Automatic Data Processing Inc)
Exchange Procedures. Commencing on the 35th day (a) As promptly as practicable after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver will send to each record holder of record a Certificate or holder of a certificate or certificates representing outstanding shares of Common Uncertificated Company Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" andother than Excluded Shares), collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such a form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates or Uncertificated Company Stock in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company OptionsMerger Consideration. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Company Common Stock (other than Excluded Shares), (A) upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder (or affidavit of lost, stolen or destroyed Certificate in lieu of a Certificate shall be entitled to surrender such Certificate Certificate, as provided in Section 2.7) to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, (xB) upon the transfer of shares of Company Common Stock that are Uncertificated Company Stock not held through Depository Trust Company (“DTC”), in accordance with the terms of the letter of transmittal and accompanying instructions (including such other documents as may reasonably be required by the Exchange Agent), or (C) upon the transfer of shares of Company Common Stock that are Uncertificated Company Stock held through DTC, including by delivery of an “agent’s message,” in accordance with DTC’s procedures and such other procedures as agreed by Parent, the Exchange Agent and DTC, each holder of such shares of Company Common Stock Certificate (other than Excluded Shares) shall be entitled to receive promptly in exchange therefor therefor, and Parent and the Cash Consideration Surviving Corporation shall cause the Exchange Agent to pay and deliver in exchange thereof as promptly as practicable, the amount of cash (including amounts to be paid in immediately available funds) which such holder has the right to receive pursuant to Section 1.7(a)(i)), into which the provisions aggregate number of shares of Company Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices.
(b) No interest will be paid or will accrue on any cash payable pursuant to Section 2.07(c1.7(a)(i). Any Certificate that has been surrendered shall be cancelled by the Exchange Agent.
(c) In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, a check in the proper amount of cash pursuant to Section 1.7(a)(i), may be issued with respect to such Company Common Stock to such a transferee only if (provided that i) in the case of Uncertificated Company Stock, written instructions authorizing the transfer of Uncertificated Company Stock Certificates delivered are presented to the Exchange Agent at and (ii) in the Closing shall be paid at case of Certificates, the Closing) and Certificate representing such shares of Company Common Stock is presented to the Stock Certificate so surrendered shall immediately be canceledExchange Agent, and (y) the holder of in each case, together with all documents required to evidence and effect such Option Certificate shall be entitled transfer and to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)evidence that any applicable stock transfer Taxes have been paid.
Appears in 2 contracts
Sources: Merger Agreement (Franklin Resources Inc), Merger Agreement (Legg Mason, Inc.)
Exchange Procedures. Commencing on the 35th day As soon as practicable after the date hereofEffective Time, Parent SB Merger shall cause the Exchange Agent to promptly deliver mail to each holder of record (as of the Effective Time) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument ), which immediately prior to the Effective Time represented outstanding RxBazaar Shares whose shares were converted into the right to receive SB Merger Shares pursuant to this Agreement, and any outstanding Company Options (the "Option Certificates" anddividends or other distributions pursuant to Section 1(j)(4), collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) 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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have contain such other provisions as Parent and the Company SB Merger may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable certificates representing SB Merger Shares and any dividends or other distributions pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares 1(j)(4). Upon surrender of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by SB Merger, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder holders of such Stock Certificate Certificates shall be entitled to receive promptly in exchange therefor certificates representing the Cash Consideration (to be paid in immediately available funds) number of whole SB Merger Shares into which such holder has their RxBazaar Shares were converted at the right to receive Effective Time and any dividends or distributions payable pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 1(j)(4), and the Stock Certificate Certificates so surrendered shall immediately forthwith be canceled. Until so surrendered, outstanding Certificates will be deemed from and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing DateEffective Time, for all corporate purposes, subject to Section 1(j)(4) in exchange therefor as to the consideration payment of dividends, to evidence only the ownership of the number of full SB Merger Shares into which such holder has the right to receive RxBazaar Shares shall have been so converted and any dividends or distributions payable pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.101(j)(4).
Appears in 2 contracts
Sources: Merger Agreement (Sb Merger Corp), Merger Agreement (Sb Merger Corp)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (and in any event within two (2) Business Days thereafter), Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of Shares represented by a certificate Certificate (other than holders of Excluded Shares) or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Uncertificated Shares (i) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 2.2(g)) or Uncertificated Shares to the Exchange Agent and which shall Agent, such letter of transmittal to be in such form and have such other provisions as Parent and the Company may reasonably specify) agree, and (ii) instructions for effecting surrendering the surrender Certificates (or affidavits of loss in lieu of the Certificates as provided in exchange for the cash payable pursuant to Section 2.07(c2.2(g)) or 2.10Uncertificated Shares (including instructions for sending an “agent’s message” in customary form (or such other evidence, if any, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent may reasonably request)) to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate (or Option Certificateaffidavit of loss in lieu of the Certificate as provided in Section 2.2(g)) to the Exchange Agent in accordance with the terms of such letter of transmittal or with respect to Uncertificated Shares, receipt of an “agent’s message” in customary form (or such other evidence, if any, as the case Exchange Agent may be, to reasonably request) by the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate or Uncertificated Share shall be entitled to receive promptly in exchange therefor cash amounts and one or more shares of Parent Class A Common Stock which shall represent, in the Cash Consideration (to be paid in immediately available funds) which such holder has aggregate, the right to receive pursuant to the provisions whole number of Section 2.07(c) (provided shares of Parent Class A Common Stock that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified 2.1(a), less any required Tax withholdings as provided in Section 2.102.2(h). The Certificate or Uncertificated Share so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Uncertificated Share. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, cash amounts and the shares of Parent Class A Common Stock to be paid and exchanged upon due surrender of the Certificate or Uncertificated Share pursuant to Section 2.1(a) may be paid and issued to such transferee if the Certificate formerly representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable.
Appears in 2 contracts
Sources: Merger Agreement (Twilio Inc), Merger Agreement (SendGrid, Inc.)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent the Surviving Corporation shall cause the Exchange Agent to promptly deliver mail to each holder of record as of the Effective Time of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Common Stock and whose shares were converted pursuant to Section 2.03(k) into the "Option Certificates" and, collectively together with right to receive the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Merger Consideration: (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions not inconsistent with this Agreement as Parent Stockholder and the Company may Surviving Corporation shall reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration to which the holder of such Certificate is entitled pursuant to Section 2.07(c2.03(k) or 2.10, as (without limiting the case may be, with respect to the shares effect of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinSection 2.03(o)). Upon surrender of a Stock Certificate or Option Certificate, for cancellation to the Exchange Agent and such other documents as the case may be, to be reasonably requested by the Exchange Agent, together with such letter of transmittaltransmittal duly completed and validly executed in accordance with the instructions thereto, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash aggregate Merger Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 2.03(k) (which after taking into account all Certificates surrendered by such holder), and the Certificate so surrendered shall include forthwith be cancelled. Until so surrendered, each Certificate will represent, from and after the Effective Time, only the right to receive the Merger Consideration in cash as contemplated by this Article II. No interest payment specified in Section 2.10)shall accrue or be paid on the amounts payable pursuant to this Article II upon surrender of a Certificate.
Appears in 2 contracts
Sources: Transaction Agreement (Panamsat Corp /New/), Transaction Agreement (Directv Group Inc)
Exchange Procedures. Commencing on (i) Empire Stock Transfer, Inc., WCRF’s transfer agent, shall act as exchange agent (the 35th day “Exchange Agent”) in the Merger.
(ii) Promptly after the date hereofEffective Time, Parent WCRF shall make available to the Exchange Agent for exchange in accordance with this Article I, through such reasonable procedures as WCRF may adopt, the Merger Shares issuable pursuant to Section 1.01(a) in exchange for Apollo Shares outstanding immediately prior to the Effective Time.
(iii) Promptly after the Effective Time, WCRF shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (Apollo Shares, whose shares were converted into the "Option Certificates" andright to receive shares of Merger Shares pursuant to Section 1.01, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company WCRF may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereincertificates representing Merger Shares. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by WCRF, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate representing the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions number of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration Merger Shares which such holder has the right to receive pursuant to Section 2.10 hereof 1.01, and the Certificate so surrendered shall forthwith be canceled.
(which iv) Notwithstanding anything to the contrary in this Section 1.07, none of the Exchange Agent, the Surviving Entity, WCRF or any party hereto shall include the interest payment specified in Section 2.10)be liable to any person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
Appears in 2 contracts
Sources: Merger Agreement (Wincroft Inc), Merger Agreement (Wincroft Inc)
Exchange Procedures. Commencing on A. Immediately prior to the 35th day Effective Time, FNBC shall deposit in trust with Computershare, Inc. (or another third party as may be mutually agreed upon by FNBC and SIBC), for the benefit of the holders of Certificates, as hereinafter defined, for exchange in accordance with this Section 3.03, an amount of cash which is not less than the product of $21.25 multiplied by the total number of outstanding shares of SIBC Stock as of the Effective Time (which is hereinafter referred to as the “Exchange Fund”).
B. As soon as practicable after the date hereofEffective Time, Parent shall cause and in no event more than five business days after the Effective Time, the Exchange Agent to promptly deliver will mail to each record holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any one or more outstanding Company Options shares of SIBC Stock (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i“Certificate”) a letter of transmittal that will (which shall i) specify that delivery shall will be effected, and risk of loss and title to the Certificates shall Certificate(s) will pass, only at or following the Effective Time and upon delivery of the Certificates Certificate(s) to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and Agent, (ii) include instructions for effecting use in surrendering the surrender of the Certificates Certificate(s) in exchange for the cash payable pursuant consideration to Section 2.07(cwhich the holder is entitled, and (iii) or 2.10, include such other reasonable provisions consistent with the terms hereof as the case Exchange Agent may be, with respect to the shares of Common Stock or Company Options formerly represented therebyspecify. The letter of transmittal with respect to Option Certificates (which shall contain language waiving any claims the holders thereof may have against Parent no representations or the Company or any Affiliates of either with respect warranties other than as to the Company Options. As soon as reasonably practicable (and in any event not later than three (3ownership) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled prepared by FNBC prior to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinand shall be subject to approval by SIBC (which shall not be unreasonably withheld, conditioned or delayed). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and executed, (x) and such other documents as FNBC may reasonably require, the holder of such Stock Certificate shall will be entitled to receive promptly the cash consideration described in exchange therefor Section 3.01. The Exchange Agent will cancel the Cash Consideration (to Certificates surrendered in accordance with this Section 3.03.
C. No interest will be paid in immediately available funds) which such holder has the right to receive pursuant or will accrue to the provisions holders of Section 2.07(cthe Certificate(s) (provided that Stock Certificates delivered with respect to the cash consideration to which the holder may be entitled. Notwithstanding anything herein to the contrary, none of FNBC, First NBC Bank, SIBC, or the Exchange Agent at the Closing shall will be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the liable to any former holder of SIBC Stock with respect to any amount delivered in good faith to a public official in accordance with any applicable abandoned property, escheat or similar laws.
D. If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Option Certificate shall be entitled to receive (to be paid lost, stolen or destroyed and, if required by FNBC, the posting by such Person of a bond in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) such reasonable amount as FNBC may determine is necessary as indemnity against any claim that may be made against it with respect to such Certificate, FNBC will deliver in exchange therefor for the lost, stolen or destroyed Certificate the cash consideration which due to such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Person under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (State Investors Bancorp, Inc.), Agreement and Plan of Reorganization (First NBC Bank Holding Co)
Exchange Procedures. Commencing on (i) No later than five Business Days following the 35th day after the date hereofEffective Time, Parent shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding Company Options Cash Merger Shares (the "Option Certificates" and, collectively together with the Stock Certificatescollectively, the "“Certificates"”), whose shares of Company Common Stock were converted pursuant to Section 3.1(c) from whom into the Exchange Agent receives a written request right to receive the Cash Merger Consideration, (iA) a letter of transmittal (which shall specify specify, among other things, that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery actual delivery of the Certificates to the Exchange Agent Paying Agent, and which shall otherwise be in such form and have such other provisions as Parent and the Company may reasonably specify) customary form), and (iiB) instructions for use in effecting the surrender of the Certificates in exchange for payment of the cash payable pursuant to Section 2.07(cCash Merger Consideration.
(ii) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentPaying Agent or to such other agent or agents as may be reasonably appointed by the Surviving Corporation, together with such letter of transmittal, duly executedexecuted and completed in accordance with the instructions thereon, (x) together with any other items specified by the letter of transmittal or otherwise reasonably required by the Paying Agent, the holder of such Stock Certificate shall be entitled to receive promptly receive, within five Business Days of the surrender of such Certificate, in exchange therefor therefor, the Cash Merger Consideration (for each Cash Merger Share represented by such Certificate, and the Certificate so surrendered shall forthwith be cancelled. Until so surrendered, each Certificate shall be deemed, for all purposes, to be paid in immediately available funds) which such holder has evidence only the right to receive upon surrender of such Certificate the Cash Merger Consideration deliverable in respect thereof to which the holder thereof is entitled pursuant to Section 3.1(c) and this Section 3.2. No interest will be paid or will accrue in respect of any cash payable upon the provisions surrender of any Certificate.
(iii) If any Certificate shall have been lost, stolen or destroyed, then, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Parent shall cause the Paying Agent to pay in exchange for such lost, stolen or destroyed Certificate the Cash Merger Consideration deliverable in respect thereof to which the holder thereof is entitled pursuant to Section 2.07(c3.1(c) (provided and this Section 3.2; provided, that Stock Certificates delivered Parent may require the Person to whom any such Cash Merger Consideration is to be paid, as a condition precedent to the Exchange Agent at payment thereof, to give the Closing Surviving Corporation a bond in such sum as it may direct or otherwise indemnify the Surviving Corporation in a manner reasonably satisfactory to Parent against any claim that may be made against the Surviving Corporation with respect to the Certificate claimed to have been lost, stolen or destroyed.
(iv) If payment of Cash Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate is registered on the books of the Company, it shall be paid at a condition of payment that the Closing) and the Stock Certificate so surrendered be properly endorsed or be otherwise in proper form for transfer and that the Person requesting such payment shall immediately be canceled, have paid any transfer and (y) other Taxes required by reason of the payment of Cash 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 Option Certificate Taxes either have been paid or are not applicable. Each of the Paying Agent, Parent and the Surviving Corporation shall be entitled to receive (deduct and withhold, or cause to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the deducted and withheld, from any consideration which such holder has the right to receive payable or otherwise deliverable pursuant to Section 2.10 hereof this Agreement to any holder or former holder of Cash Merger Shares such amounts as may be required to be deducted and withheld therefrom under the Code or any other applicable Law relating to Taxes. 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 and shall be paid to the appropriate Governmental Entity on behalf of such Person.
(which v) The Surviving Corporation shall include pay all charges and expenses of the interest payment specified Paying Agent in Section 2.10)connection with the exchange of the Cash Merger Consideration for the Cash Merger Shares.
Appears in 2 contracts
Sources: Merger Agreement (Ssa Global Technologies, Inc), Merger Agreement (Magellan Holdings, Inc.)
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time, Parent and in any event within four (4) Business Days after the Effective Time, Holdco shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to Cooper Share, entitled at the Effective Time represented any outstanding Company Options (to a right to receive the "Option Certificates" andScheme Consideration pursuant to Clause 8.1(c)(i), collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effected, and that risk of loss and title to the Certificates Cooper Shares shall pass, only at or following the Effective Time and upon delivery of the Certificates adherence to the Exchange Agent and which shall be procedures set forth in such form and have such other provisions as Parent and the Company may reasonably specify) letter of transmittal), and (ii) instructions for use in effecting the surrender of the Certificates Cooper Shares in exchange for payment of the cash payable pursuant to Section 2.07(c) or 2.10Scheme Consideration therefor. Upon surrender of Cooper Shares, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent which at the Effective Time in accordance with were cancelled and converted into the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as right to receive the case may beScheme Consideration, to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) and such other documents as may reasonably be required by the Exchange Agent, the holder of such Stock Certificate Cooper Shares shall be entitled to receive promptly in exchange therefor therefor: (a) a check in an amount of U.S. dollars (after giving effect to any required withholdings pursuant to Clause 8.1(d)(v)) equal to the aggregate Cash Consideration (payable to be paid such holder in immediately available fundsrespect thereof pursuant to Clause 8.1(c)(i)(A) which and the amount of any cash payable in lieu of any Fractional Entitlements that such holder has the right to receive pursuant to the provisions Clause 8.1(c)(i)(B) and (b) that number of Section 2.07(c) (provided that Stock Certificates delivered Holdco Shares into which such holder’s properly surrendered Cooper Shares were converted pursuant to the Exchange Agent at the Closing Clause 8.2(c)(i)(B). No interest shall be paid at or shall accrue for the Closing) and benefit of holders of the Stock Certificate so surrendered shall immediately be canceled, and (y) Cooper Shares on the holder Scheme Consideration payable in respect of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Cooper Shares.
Appears in 2 contracts
Sources: Transaction Agreement (Eaton Corp), Transaction Agreement (Cooper Industries PLC)
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time (and in any event within three (3) Business Days thereof), Parent Acquiror shall cause instruct the Exchange Agent to promptly deliver mail (and shall make available for collection by hand) to each holder of record of a certificate certificates or certificates representing outstanding shares of instruments evidencing the Company Common Stock (the "and Company Options and Company Restricted Stock Certificates") and to each holder of record of a certificate or instrument which Units that were outstanding immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificatescollectively, the "“Certificates"”) from whom and which were converted into the Exchange Agent receives a written request right to receive cash pursuant to Section 2.1(b), (i) a letter of transmittal (which in customary form, that shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and (provided that Acquiror will provide the Company may reasonably specify) with a reasonable opportunity to review and comment thereon), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for cash, (which instructions shall provide that, at the cash payable pursuant to Section 2.07(c) or 2.10election of the surrendering holder, as the case Certificates may bebe surrendered, with respect to the shares and a check in exchange therefor collected, by hand delivery). Upon surrender of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent (x) including any required Form W-9 or Form W-8), the holder holders of such Stock Certificate Certificates shall be entitled to receive promptly in exchange therefor a check or wire transfer (at the Cash Consideration (to be paid election of the holder thereof) in immediately available funds) which the amount of U.S. dollars that such holder has holders have the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 2.1(b), and the Stock Certificate Certificates so surrendered shall immediately forthwith be canceled. Until so surrendered, outstanding Certificates will be deemed from and after the Effective Time, for all corporate purposes, to evidence only the right to receive upon surrender thereof a check or wire transfer (y) at the election of the holder thereof) in the amount of such Option Certificate shall be entitled U.S. dollars that the holders thereof have the right to receive (pursuant to Section 2.1(b). No interest will be paid or accrued on any cash payable to holders of Certificates. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in immediately available funds) promptly the transfer records of the Company, a check or wire transfer (but no earlier than at the seventh day after election of the Closing Datetransferee) in exchange therefor the consideration which such amount of U.S. dollars that the holder thereof has the right to receive pursuant to Section 2.10 hereof (which shall include 2.1(b) may be issued to a transferee if the interest payment specified in Section 2.10)Certificate representing such shares of Company Common Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer Taxes have been paid.
Appears in 2 contracts
Sources: Merger Agreement (Force10 Networks Inc), Merger Agreement (Carrier Access Corp)
Exchange Procedures. Commencing on the 35th day after the date hereof, (i) Parent shall use commercially reasonable efforts to cause the Exchange Agent to promptly deliver be mailed, as soon as reasonably practical, but within ten (10) business days, to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock, whose shares were converted into the right to receive shares of Parent Common Stock (and cash in lieu of fractional shares, less any outstanding Company Options amount required to be withheld from such cash under foreign, federal, state or local tax laws), (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) 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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ), and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) certificates (or 2.10, as book entries in the case may be, with respect to the of shares that have not yet vested) representing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and cash in lieu of fractional shares, less any event not later than three amount required to be withheld from such cash under foreign, federal, state or local tax laws).
(3ii) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (xA) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate (or a book entry in the Cash Consideration (to be paid case of shares that have not yet vested in immediately available fundsfull) which such holder has representing the right to receive pursuant number of whole shares of Parent Common Stock equal to the provisions product of Section 2.07(c(i) the number of Company shares represented by such certificate multiplied by (provided that Stock Certificates delivered to ii) the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceledRatio, and (y) the holder and, if applicable, payment in lieu of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration fractional shares which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(f), and (which B) the Certificate so surrendered shall include forthwith be canceled.
(iii) In the interest payment specified in Section 2.10).event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the stockholder claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issue or cause to be issued to
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Novellus Systems Inc)
Exchange Procedures. Commencing on the 35th day after the date hereof, (i) Parent shall use commercially reasonable efforts to cause the Exchange Agent to promptly deliver be mailed, as soon as reasonably practical, but within ten (10) business days, to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented ------------ outstanding shares of Company Capital Stock, whose shares were converted into the right to receive shares of Parent Common Stock (and cash in lieu of fractional shares, less any outstanding Company Options amount required to be withheld from such cash under foreign, federal, state or local tax laws), (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) 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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ), and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) certificates (or 2.10, as book entries in the case may be, with respect to the of shares that have not yet vested) representing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and cash in lieu of fractional shares, less any event not later than three amount required to be withheld from such cash under foreign, federal, state or local tax laws).
(3ii) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (xA) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate (or a book entry in the Cash Consideration (to be paid case of shares that have not yet vested in immediately available fundsfull) which such holder has representing the right to receive pursuant number of whole shares of Parent Common Stock equal to the provisions product of Section 2.07(c(i) the number of Company shares represented by such certificate multiplied by (provided that Stock Certificates delivered to ii) the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceledRatio, and (y) the holder and, if applicable, payment in lieu of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration fractional shares which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(f), and (B) the Certificate so surrendered shall forthwith be canceled.
(iii) In the event that any Certificate shall have been lost stolen or destroyed, upon the making of an affidavit of that fact by the stockholder claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issue or cause to be issued to such Person in exchange for such lost, stolen or destroyed Certificate, a new certificate into which the shares of such Person's Company Capital Stock that are converted on the Effective Date and/or, if applicable, deliver or cause to be delivered to such Person a check in respect of any fractional share interests or dividends or distributions, which such Person shall include be entitled to receive pursuant to Section 1.6(f). When authorizing such issuance in exchange therefor, Parent and/or the interest payment specified Exchange Agent may, in Section 2.10)its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to give Parent and/or the Exchange Agent a reasonable form of bond as indemnity, as it shall direct, against any claim that may be made against Parent or the Exchange Agent with respect to the Certificate alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Gasonics International Corp)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (and in any event within three (3) Business Days thereafter), Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of Shares represented by a certificate Certificate (other than holders of Excluded Shares) or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Uncertificated Shares (i) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 2.2(g)) or Uncertificated Shares to the Exchange Agent and which shall Agent, such letter of transmittal to be in such form and have such other provisions as Parent and the Company may reasonably specify) agree, and (ii) instructions for effecting surrendering the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 2.2(g)) or Uncertificated Shares (including instructions for sending an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request)) to the Exchange Agent. Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 2.2(g)) to the Exchange Agent in accordance with the terms of such letter of transmittal or with respect to Uncertificated Shares receipt of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request) by the Exchange Agent, the holder of such Certificate or Uncertificated Share shall be entitled to receive in exchange therefor non-certificated shares of Parent Common Stock in book-entry form, and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 2.2(e) and any dividends or other distributions pursuant to Section 2.2(c), less any required Tax withholdings as provided in Section 2.2(h). The Certificate or Uncertificated Share so surrendered shall forthwith be cancelled. Until due surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10Uncertificated Share, as the case may beeach Certificate and Uncertificated Share shall be deemed, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (from and in any event not later than three (3) Business Days) after the Effective Time, to represent only the right to receive shares of Parent shall cause Common Stock (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 2.2(e)). In the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record event of a Certificate who has transfer of ownership of Shares that is not previously requested such documents from registered in the Exchange Agent. Each holder transfer records of a Certificate shall the Company, the applicable portion of Merger Consideration to be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon exchanged upon due surrender of a Stock the Certificate or Option Certificate, as Uncertificated Share pursuant to Section 2.1(a) may be issued and paid to such transferee if the case may be, Certificate formerly representing such Shares is presented to the Exchange Agent, together with accompanied by all documents required to evidence and effect such letter transfer and the Person requesting such payment shall pay any transfer or other Taxes required by reason of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant transfer or establish to the provisions reasonable satisfaction of Section 2.07(c) (provided Parent that Stock Certificates delivered to the Exchange Agent at the Closing shall be such Taxes have been paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)or are not applicable.
Appears in 1 contract
Sources: Merger Agreement (Metacrine, Inc.)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent shall cause the Exchange Agent shall cause to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Securities, which, pursuant to the "Option Certificates" andMerger, collectively together with the Stock Certificateswere exchanged for Parent Securities, the "Certificates") from whom the Exchange Agent receives a written request pursuant to Section 1.6, (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the certificates representing shares of Common Stock or Company Options formerly represented therebyParent Securities. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate representing the Cash Consideration number of whole shares of Parent Securities, plus cash in lieu of fractional shares of Parent Securities, in accordance with Section 1.6(f) and the Certificate so surrendered shall forthwith be owned in the name of Merger Sub. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Securities held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of persons entitled thereto. Until so surrendered, each outstanding Certificate that, prior to the Effective Time, represented shares of Company Securities will be deemed from and after the Effective Time, for all corporate purposes, to represent solely (to be paid in immediately available fundsi) ownership of the number of full shares of Parent Securities into which such holder has Company Securities shall have been so exchanged, and (ii) the right to receive pursuant to an amount in cash in lieu of the provisions issuance of any fractional shares in accordance with Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.101.6(f).
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record (as of the Effective Time) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock CertificatesCERTIFICATES") and to each holder of record of a certificate or instrument ), which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" andCommon Shares whose shares were exchanged for Exchangeable Shares pursuant to Section 1.5, collectively together with the Stock Certificatescash in lieu of any fractional shares pursuant to Section 1.5(d), the "Certificates") from whom the Exchange Agent receives a written request subject to receipt of (i) a duly completed and validly executed 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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have contain such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the certificates representing Exchangeable Shares, and cash payable in lieu of any fractional shares pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares 1.5(d). Upon surrender of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder holders of such Stock Certificate Certificates shall be entitled to receive promptly in exchange therefor certificates representing the Cash Consideration (to be paid number of whole shares of Exchangeable Shares into which their Company Common Shares were exchanged at the Effective Time, together with payment in immediately available funds) lieu of fractional shares which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has holders have the right to receive pursuant to Section 2.10 hereof (1.5(d), and the Certificates so surrendered shall forthwith be cancelled. Until so surrendered, outstanding Certificates will be deemed from and after the Effective Time, for all corporate purposes, subject to Section 1.5(d), to evidence only the ownership of the number of full shares of Exchangeable Shares into which shall include such Company Common Shares are entitled to be exchanged and the interest payment specified right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 2.101.5(d).
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent (a) Unless different timing is agreed to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as writing by Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10Lime, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and after the Effective Time, but in any event not later no more than three five (35) Business Days) Days after the Effective Time, Parent shall cause the Exchange Agent to mail a to the former stockholders of Lime appropriate transmittal materials. The letter of transmittal shall provide instructions for the submission of Certificates, or evidence of transfer of Book-Entry Shares, representing, immediately prior to the Effective Time, shares of Lime Stock (or an indemnity satisfactory to Lime, Parent and the instructions described above Exchange Agent, if any of such Certificates are lost, stolen, or destroyed) to each holder of record of shares of Lime Stock converted into the right to receive the applicable portion of the Merger Consideration at the Effective Time. In the event of a transfer of ownership of shares of Lime Stock represented by one or more Certificates or Book-Entry Shares that are not registered in the transfer records of Lime, the Per Share Merger Consideration payable for such shares as provided in Sections 3.1 may be issued to a transferee, subject to the deductions provided for in Section 3.2(a), if the Certificate or Certificates representing such shares are delivered to the Exchange Agent or such Book-Entry Shares are properly transferred, in each case accompanied by all documents required to evidence such transfer and by evidence reasonably satisfactory to the Exchange Agent that such transfer is proper and that any applicable stock transfer taxes have been paid. In the event any Certificate representing Lime Stock shall have been lost, mutilated, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, mutilated, stolen, or destroyed and the posting by such Person of a bond in such amount as Parent may reasonably direct as indemnity against any claim that may be made against it with respect to such certificate, the Exchange Agent shall issue in exchange for such lost, mutilated, stolen, or destroyed Certificate the Per Share Merger Consideration, subject to the deductions provided for in Section 3.2(a), as provided for in Section 3.1. The Exchange Agent may establish such other reasonable and customary rules and procedures in connection with its duties as it may reasonably deem appropriate. Parent and the Lime Representative (on behalf of the Participating Securityholders) shall each pay one-half all charges and expenses of the Exchange Agent in connection with the distribution of the Merger Consideration as provided in Section 3.1.
(b) Subject to the terms and conditions of this Agreement, after the Effective Time, the Exchange Agent shall promptly (and in any event within five (5) Business Days), upon surrender of a Certificate who has not previously or Certificates (or an indemnity satisfactory to Lime, Parent and the Exchange Agent, if any of such Certificates are lost, stolen, or destroyed) and a letter of transmittal duly completed and validly executed in accordance with the instructions thereto or receipt of such evidence of transfer of Book-Entry Shares as may be reasonably requested by the Exchange Agent, pay to the holder of such documents Certificate(s) or Book-Entry Shares from the Exchange AgentFund their respective aggregate Per Share Merger Consideration due to such holder, subject to the deductions provided for in Section 3.2(a), as provided in Section 3.1, without interest, pursuant to this Section 3.3, and the Certificate(s) shall forthwith be cancelled. Each The Certificate or Certificates of Lime Stock so surrendered shall be duly endorsed as the Exchange Agent may reasonably require. Parent shall not be obligated to deliver the consideration to which any former holder of Lime Stock is entitled as a result of the Merger until such holder surrenders such holder’s Certificate or Certificates for exchange (or an indemnity satisfactory to Lime, Parent and the Exchange Agent, if any of such Certificates are lost, stolen, or destroyed) or provide evidence of transfer of such holder’s Book-Entry Shares as provided in this Section 3.3. Any other provision of this Agreement notwithstanding, neither any Parent Entity, nor any Lime Entity, nor the Exchange Agent shall be liable to any holder of Lime Stock for any amounts paid or properly delivered in good faith to a public official pursuant to any applicable abandoned property, escheat, or similar Law.
(c) Each of Parent and the Exchange Agent shall be entitled to surrender deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Lime Stock, Lime Options and the Lime Warrant such Certificate amounts, if any, as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local, or foreign Tax Law or by any Taxing Authority or Governmental Authority. To the extent that any amounts are so withheld by Parent, the Surviving Corporation, or the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option CertificateAgent, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Lime Stock, Lime Options and the Lime Warrant, as applicable in respect of which such deduction and withholding was made by Parent, the Surviving Corporation, or the Exchange Agent, together with such letter as the case may be.
(d) Any portion of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Merger Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closingby Parent pursuant to Section 3.2(a)(iii) and the Stock Certificate so surrendered shall immediately be canceled, and (y) that remains unclaimed by the holder of such Option Certificate shares of Lime Stock for one (1) year after the Effective Time (as well as any proceeds from any investment thereof) shall be entitled delivered by the Exchange Agent to receive (Parent. Any holder of shares of Lime Stock who has not at that time complied with this Section 3.3 shall thereafter look only to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor Parent for the consideration which in respect of each share of Lime Stock such holder has the right to receive holds as determined pursuant to Section 2.10 hereof this Agreement without any interest thereon.
(which e) Adoption of this Agreement by the stockholders of Lime shall include constitute ratification of the interest payment specified in Section 2.10)appointment of the Exchange Agent.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent the Surviving Corporation shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (shares of Target Common Stock or Target Preferred Stock and was converted into the "Option Certificates" andright to receive the Merger Consideration pursuant to Section 1.6, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company Acquiror may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinMerger Consideration. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, or to such other agent or agents as may be appointed by Acquiror, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled. Until so surrendered, each Certificate will be deemed from and after the Effective Time, for all corporate purposes, to be paid in immediately available funds) which such holder has evidence the right to receive pursuant that portion of the Merger Consideration as set forth in this Section 1.6. Each Major Stockholder shall as a condition to receiving any of the Note Consideration execute and deliver to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to Acquiror the Exchange Agent at Secured Subordinated Promissory Note and Pledge Agreement in the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).form attached hereto as Exhibit D.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day As promptly as practicable after the date hereofEffective Time (but in any event, no later than forty-eight (48) hours thereafter), Parent shall cause instruct the Exchange and Paying Agent to promptly deliver mail or otherwise deliver, to each holder of record of Company Common Shareholder a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal transmittal, (the “Letter of Transmittal”), which shall include the obligation of each Company Common Shareholder to agree to Section 3.4, and Article IX of this Agreement, solicit the Exempt Investor Certification, and shall specify that delivery shall be effectedin respect of any Certificate, and risk of loss and title to the Certificates shall pass, pass only at or following the Effective Time and upon delivery of the Certificates to receipt thereof by the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and Paying Agent, (ii) any notice required pursuant to the BCA and (iii) instructions for use in effecting the surrender of the Certificates in exchange for or transfer of the cash payable pursuant Book-Entry Shares, as applicable, held by such Company Common Shareholder. In the event a Company Common Shareholder does not deliver to Section 2.07(cthe Exchange and Paying Agent a duly executed and completed Letter of Transmittal, Exempt Investor Certification and does not deliver the Certificate(s) or 2.10surrender the Book-Entry Shares, as the case may be, with respect to the shares of held by such Company Common Stock or Shareholder such Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates Common Shareholder shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender receive the Per Share Merger Consideration unless and until such Certificate to the Exchange Agent at the Effective Time Person delivers a duly executed and completed Letter of Transmittal, Exempt Investor Certification and Certificate(s), Book-Entry Shares (or an affidavit in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option CertificateSection 3.2(a)(vii)), as the case may beapplicable, to the Exchange and Paying Agent. Until surrendered as contemplated by this Section 3.2(a)(v), together with such letter of transmittal, duly executed, (x) the holder of such Stock each Certificate or Book-Entry Share shall be entitled deemed at any time after the Effective Time to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has represent only the right to receive pursuant to upon such surrender the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive Per Share Merger Consideration pursuant to Section 2.10 hereof (which shall include 3.1(a)(iii)-(iv). No interest will be paid or will accrue on any portion of the interest payment specified in Section 2.10)cash due to any Cashed Out Company Common Shareholder.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day (i) No later than seven calendar days after the date hereofAgreement Date, Parent the Company shall cause the Exchange Agent mail to promptly deliver to each every holder of record of Company Capital Stock that was issued and outstanding immediately prior to the Effective Time and that has not previously delivered its Certificates together with a certificate or certificates representing outstanding shares properly completed and duly executed letter of Common Stock transmittal in the form supplied by Acquiror (the "Stock Certificates"“Letter of Transmittal”): (A) a form of Letter of Transmittal and to each holder (B) instructions for use of record the Letter of a certificate Transmittal in effecting the surrender of certificates or instrument instruments which immediately prior to the Effective Time represented any issued and outstanding Company Options Capital Stock that were converted into the right to receive consideration pursuant to Section 1.11(b) (the "Option “Certificates" and, collectively together with the Stock Certificates, the "Certificates"”) from whom the Exchange Agent receives a written request (i) a letter in exchange for such consideration. The Letter of transmittal (which Transmittal shall specify that delivery of Certificates shall be effected, and risk of loss and title to the Certificates shall pass, only at or following upon receipt thereof by Acquiror, together with a properly completed and duly executed Letter of Transmittal, duly executed on behalf of each Person effecting the Effective Time surrender of such Certificates, and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company Acquiror may reasonably specify, including that the Effective Time Holders agree to be bound by the provisions of Section 1.12(a) and ARTICLE IX of this Agreement.
(ii) instructions for effecting Upon the surrender date of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect delivery to the shares Acquiror (or to such other agent or agents as may be appointed by Acquiror) of Common Stock or Company Options formerly represented a Certificate, together with a properly completed and duly executed Letter of Transmittal and any other documentation required thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims , (A) the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which that such holder has the right to receive pursuant to Section 2.10 hereof 1.11(b) in respect of such Certificate, and (which B) such Certificate shall include the interest payment specified in Section 2.10)be canceled.
Appears in 1 contract
Exchange Procedures. Commencing on (a) Parent shall designate a bank or trust company to act as Exchange Agent hereunder (the 35th day "Exchange Agent") reasonably satisfactory to the Company. Immediately following the Effective Time, Parent shall deliver, in trust, to the Exchange Agent, for the benefit of the holders of Shares, for exchange in accordance with this Article II through the Exchange Agent, (i) cash in an amount sufficient to make any cash payment due under Sections 2.1(a) and 2.4 hereof (the "Exchange Fund") and (ii) certificates evidencing the shares of Parent Common Stock issuable pursuant to Section 2.1(a) in exchange for outstanding Shares.
(b) As soon as practicable after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Certificates (i) a form of letter of transmittal (which shall specify specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the use in surrendering such Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, Merger Consideration (as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinhereinafter defined). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor (A) the Cash product of the Per Share Merger Consideration (multiplied by the number of Shares represented by the surrendered Certificate; provided however, that each holder shall receive cash in lieu of any fractional share of Parent Common Stock to be paid in immediately available funds) which such holder has is entitled pursuant to Section 2.4 hereof, and (B) any amounts to which the holder is entitled pursuant to Section 2.3 hereof after giving effect to any required tax withholdings and the Certificate so surrendered shall forthwith be cancelled. Until surrendered as contemplated by this Section 2.2(b), each Certificate shall be deemed from and after the Effective Time to represent only the right to receive pursuant to upon such surrender the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing Per Share Merger Consideration. In no event shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of any such Option surrendered Certificate shall be entitled to receive (interest on any cash to be received in the Merger. Neither the Exchange Agent nor any party hereto shall be liable to a holder of Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(c) 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 immediately available funds) promptly (but no earlier than such reasonable and customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the seventh day after the Closing Date) Exchange Agent will issue in exchange therefor for such lost, stolen or destroyed Certificate the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Per Share Merger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Hudson James T)
Exchange Procedures. Commencing on the 35th day As soon as practicable after the date hereof, Parent and the Company shall, or shall cause instruct the Exchange Escrow Agent to promptly to, deliver to each holder Company Stockholder a notice advising each such Company Stockholder of record of a certificate or the anticipated Effective Time and the procedure for surrendering to the Escrow Agent any certificates representing outstanding shares of Common Company Stock (the "Stock “Certificates") and to ”), in each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively case together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal in substantially the form attached hereto as Exhibit I (which each, a “Letter of Transmittal”). The Letter of Transmittal shall specify specify, among other things, that (i) delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Escrow Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting each Company Stockholder shall, upon execution of such Letter of Transmittal, be deemed to have appointed the surrender Securityholder Representative as its representative and the terms of Article VIII shall be deemed to bind such Company Stockholder as if it were a signatory hereto. Each Company Stockholder shall be asked to deliver an executed Letter of Transmittal, together with its Certificates, to the Escrow Agent no less than two Business Days prior to Closing, to be held in escrow by the Escrow Agent until the Closing. If such Company Stockholder has complied with the foregoing, then such Company Stockholder shall be paid on the Closing Date or the applicable date in respect of the release of Escrow Funds or distribution of an Earn‑Out Payment pursuant to the Earn-Out Agreement, as applicable, the amount, without interest, that such Company Stockholder is entitled to receive in respect of the shares of Company Stock evidenced by such Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.102.8(a), as the case may beSection 2.9(a), with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal this Section 2.13 and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate Earn‑Out Agreement (as and when due hereunder or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closingthereunder) and the Stock Certificate Certificates so surrendered shall immediately be canceled. If a Company Stockholder has not delivered an executed Letter of Transmittal, and (y) together with its Certificates, at least two Business Days prior to the holder Closing Date, or the applicable date in respect of the release of Escrow Funds or distribution of an Earn‑Out Payment pursuant to the Earn‑Out Agreement, as applicable, then such Option Certificate Company Stockholder shall be paid promptly after the Escrow Agent receives such documents, the amount, without interest, that such Company Stockholder in entitled to receive in respect of the shares of Company Stock evidenced by such Certificates pursuant to Section 2.8(a), Section 2.9(a), this Section 2.13 and the Earn‑Out Agreement (to as and when due hereunder or thereunder), and the Certificates so surrendered shall immediately be paid in immediately available funds) promptly (but no earlier than the seventh day canceled. Until so surrendered, any outstanding Certificates held by a Company Stockholder shall be deemed from and after the Closing Date) in exchange therefor the consideration which such holder has Effective Time, for all corporate purposes, to evidence only the right to receive pursuant to the amounts specified by Section 2.10 hereof 2.8(a), Section 2.9(a), this Section 2.13 and the Earn‑Out Agreement (which shall include as and when due hereunder or thereunder) and payable in respect of the interest payment specified shares of Company Stock evidenced by such Certificates in Section 2.10)accordance with such provisions.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (and in no event later than five (5) business days following the Effective Time), Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record (as of the Effective Time) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Common Stock whose shares were converted into the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request right to receive cash pursuant to Section 1.6(a): (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration to which the holder of such Certificate is entitled pursuant to Section 2.07(c1.6(a) or 2.10, as (without limiting the case may be, with respect to the shares effect of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinSection 1.7(e)). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Certificates for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Exchange Agent, (x) the holder of such Stock Certificate Certificates shall be entitled to receive promptly (and in exchange therefor the Cash Consideration no event later than five (to be paid in immediately available funds5) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day business days after the Closing Datereceipt thereof) in exchange therefor the consideration Merger Consideration to which the holder of such holder has the right to receive certificate is entitled pursuant to Section 2.10 hereof 1.6(a) (which less any withholding amount with respect to the shares of Company Common Stock formerly held by such holder as provided by Section 1.7(e)), and the Certificates so surrendered shall include forthwith be canceled. No interest shall accrue or be paid on the interest payment specified in Section 2.10)amounts payable pursuant to this Article I upon surrender of the Certificates.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent CFAC shall cause direct the Exchange Agent to mail, promptly deliver after the Effective Time of the Merger, to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time of the Merger represented any outstanding Company Options shares of Mission Stock (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom whose shares were converted into the Exchange Agent receives a written request right to receive cash pursuant to Section 2.1 hereof, (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent CFAC and the Company Mission may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereincash. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by CFAC, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) that amount of cash which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) Sections 2.1 and 2.3 hereof, and the Stock Certificate so surrendered shall immediately forthwith be canceled. Until surrendered as contemplated by this Section 2.5, and (y) each Certificate shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender such cash as contemplated by this Section 2.5. Notwithstanding anything to the contrary set forth herein, if any holder of shares of Mission Stock should be unable to surrender the Certificates because they have been lost or destroyed, such Option Certificate holder may deliver in lieu thereof such bond in form and substance and with surety reasonably satisfactory to CFAC and shall be entitled to receive (to be paid the cash in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to accordance with Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)2.1.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock At least three (the "Stock Certificates"3) and to each holder of record of a certificate or instrument which immediately Business Days prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock CertificatesClosing, the "Certificates"Company shall mail or otherwise deliver, or cause the Paying Agent (solely for purposes of the Company Stockholders) from whom the Exchange Agent receives a written request to mail or otherwise deliver, to (i) each Company Stockholder a letter Letter of transmittal (Transmittal, which shall specify that delivery shall be effected, and risk of or loss and title to the Certificates shares of Company Capital Stock (other than Specified Shares) shall pass, only at or following the Effective Time and upon delivery proper confirmation of cancellation of the Certificates to representing such shares of Company Capital Stock (other than Specified Shares), by the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates Paying Agent, in exchange for the cash payable amounts specified in Sections 3.2(b)(ii), 3.4(f)(iii), 3.5 and 3.7(d) and/or (ii) each Company Optionholder a Company Optionholder Participation Agreement, substantially in the form of Exhibit C attached hereto (the “Company Optionholder Participation Agreement”), which, in each such case, for the avoidance of doubt, shall include the obligation of each Company Stockholder and Company Optionholder to agree to Section 3.7 of this Agreement, together with any notice required pursuant to Section 2.07(c262 (solely for purposes of such Company Stockholders) (and the Company shall, promptly following delivery of a duly executed and completed Company Optionholder Participation Agreement by a Non-Employee Company Optionholder to the Company, provide such Non-Employee Company Optionholder’s account information contained in such Company Optionholder Participation Agreement (together with all other information reasonably required by the Paying Agent) to the Paying Agent). Subject to the satisfaction of the conditions in Article VII, in the event (x) a Company Stockholder does not deliver to the Paying Agent a duly executed and completed Letter of Transmittal at or 2.10prior to the Closing, or (y) a Company Optionholder does not deliver to the Company a duly executed and completed Company Optionholder Participation Agreement, such failure shall not alter, limit or delay the Closing; provided, that such Company Stockholder and Company Optionholder, as the case may be, shall not be entitled to receive the cash payments contemplated herein unless and until such Person delivers a duly executed and completed Letter of Transmittal and/or Company Optionholder Participation Agreement, as applicable, to the Paying Agent (in the case of a Letter of Transmittal) or the Company (in the case of a Company Optionholder Participation Agreement). Upon delivery of such duly executed Letter of Transmittal, each such Company Stockholder or Employee Company Restricted Stockholder, as applicable, to the Paying Agent, such Company Stockholder or Employee Company Restricted Stockholder, as applicable, shall be entitled to receive, subject to the terms and conditions hereof, the Company Capital Stock Merger Consideration in respect of its, his or her shares of Company Capital Stock shall forthwith be canceled. Until cancelled as contemplated by this Section 3.2(b)(i), each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such cancellation the Company Capital Stock Merger Consideration. Upon the delivery to the Company of a duly executed Company Optionholder Participation Agreement, each such Company Optionholder shall be entitled to receive, subject to the terms and conditions hereof, the Company Option Merger Consideration in respect of his or her Company Options. Notwithstanding anything herein to the contrary, payment by the Paying Agent to a Company Stockholder (other than an Employee Company Restricted Stockholder who has not timely filed a Section 83(b) election with the Internal Revenue Service with respect to the shares of Common Stock or its Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates Restricted Stock) shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect be made by wire transfer at Closing to the extent such Company Options. As soon as reasonably practicable (and Stockholder complies with the delivery requirements in any event not later than this Section 3.2(c) at least three (3) Business Days) after Days prior to the Effective TimeClosing Date and, Parent shall cause to the Exchange Agent to mail extent a letter of transmittal and the instructions described above to each holder of record of a Certificate Company Stockholder (other than an Employee Company Restricted Stockholder who has not previously requested timely filed a Section 83(b) election with the Internal Revenue Service with respect to its Company Restricted Stock) only complies with the delivery requirements in this Section 3.2(c) after such documents from period, payment by the Exchange Agent. Each holder of a Certificate Paying Agent to such Company Stockholder shall be entitled to surrender such Certificate to made by wire transfer within three (3) Business Days of the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender date of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together compliance with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)delivery requirements.
Appears in 1 contract
Exchange Procedures. Commencing on No later than two (2) Business Days following the 35th day after the date hereofClosing Date, Parent shall cause instruct the Exchange Paying Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Stockholder (i) a letter of transmittal in substantially the form attached hereto as Exhibit C (which shall specify that delivery shall be effected, and risk the “Letter of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyTransmittal”) and (ii) instructions for use in effecting the surrender of the Certificates certificates representing shares of Capital Stock (the “Certificates”) in exchange for payment of the cash payable pursuant consideration to Section 2.07(c) or 2.10which such holder may be entitled. Upon receipt from a Company Stockholder of the Certificates for cancellation, together with a duly completed and validly executed Letter of Transmittal and any other documents as the case may beParent shall reasonably require, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect Paying Agent shall, subject to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Timeterms of Section 1.7, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) delivered to such Company Stockholder that portion of the Total Consideration which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder Company Stockholder has the right to receive pursuant to Section 2.10 hereof 1.7 (after giving effect to any required Tax withholding pursuant to Section 1.12) and the Certificates so surrendered shall forthwith be cancelled. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder thereof and an agreement from the applicable stockholder, in a form reasonably acceptable to the Paying Agent and Parent, to indemnify the Paying Agent (if required) and Parent, Parent or the Paying Agent shall, as promptly as practicable following the receipt by Parent or the Paying Agent, as the case may be, of the foregoing documents, subject to the terms of Section 1.7, issue in exchange for such lost, stolen or destroyed Certificate that portion of the Total Consideration represented by the lost, stolen or destroyed Certificate in exchange therefor which shall include the interest payment specified in Section 2.10)Company Stockholder has the right to receive.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day after (a) You shall mail or make available (the date hereofof such mailing, Parent shall cause the Exchange Agent to promptly deliver “Mailing Date”) to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Fresenius Holder: (i) a letter of transmittal Prospectus (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall passextent sufficient copies are provided to you by Fresenius), only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) a Letter of Transmittal (with instructions for use in effecting the surrender of Preference ADSs or accompanied by such instructions), (iii) a self-addressed return envelope and (iv) tax certification guidelines.
(b) Each Letter of Transmittal, properly completed and accompanied by the Certificates US Premium (, shall permit the Fresenius Holder (or the beneficial owner through appropriate and a customary documentation and instructions), with respect to each of such holder’s Preference ADSs, to receive the Ordinary ADSs to which they are entitled and cash in exchange for the cash payable pursuant to Section 2.07(c) or 2.10lieu of fractional Ordinary ADSs, as the case may beif any, with respect to the shares Preference ADSs evidenced by Preference ADRs that were properly submitted. A Letter of Common Stock Transmittal shall be deemed properly completed only if duly executed and accompanied by one or Company Options formerly represented thereby. The letter more Preference ADRs covered by such Letter of transmittal with respect Transmittal.
(c) Fresenius authorizes you to Option Certificates shall contain language waiving refuse to accept, in your discretion, any claims the holders thereof may have against Parent improperly completed or the Company unexecuted Letter of Transmittal or any Affiliates Letter of either with respect to Transmittal not accompanied by the Company OptionsUS Premium. As soon as reasonably practicable Notwithstanding the foregoing, without further authorization from Fresenius, you shall accept, on or before the Expiration Date, except where otherwise specified, any of the following:
(and in i) any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time exchange effected in accordance with the procedures described herein. Upon surrender terms of the Offer and received by you on or before the Expiration Date;
(ii) any exchange where payment of the US Premium is in the form of a Stock Certificate or Option Certificatecheck drawn on a U.S. bank, so long as the case may be, such check clears prior to the Exchange AgentExpiration Date;
(iii) any exchange by an individual (and not by a corporation, together with such letter partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Fresenius Holder, provided, that (a) the Letter of transmittal, Transmittal surrendered therewith has been duly executedexecuted by the Fresenius Holder, (xb) the holder tendering party is the Fresenius Holder, (c) the check tendered in payment of such Stock Certificate shall be entitled subscription is drawn for the proper amount and to receive promptly your order, and is otherwise in order and (d) there is no evidence indicating that such check was delivered by the drawer thereof for any purpose other than the payment of the accompanying US Premium owing;
(iv) any exchange therefor by a custodian on behalf of a minor which is accompanied by a check drawn by such custodian, if the Cash Consideration provisions set forth in clause (to be paid in immediately available fundsiii) above are satisfied; and
(v) any exchange by an individual, (and not by a corporation, partnership or fiduciary) which such holder has is accompanied by a check drawn by a corporation, partnership or fiduciary other than the subscriber, if the provisions set forth in clause (iii) above are satisfied.
(d) Fresenius authorizes you to waive proof of authority to sign (including the right to receive pursuant waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any exchange with respect to which:
(i) the provisions surrendered Preference ADR is registered in the name of Section 2.07(c) (an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Fresenius Holder, provided that Stock Certificates delivered the Ordinary ADSs are to be issued in the Exchange Agent at name of such Fresenius Holder;
(ii) the Closing shall surrendered Preference ADR is registered in the name of a corporation and has been executed by an officer of such corporation, provided that the Ordinary ADSs are to be paid at issued in the Closingname of such corporation; or
(iii) the surrendered Preference ADR has been executed by a bank, trust company or broker as agent for the Fresenius Holder thereof, provided that the Ordinary ADSs are to be issued in the name of such Fresenius Holder; or
(iv) the surrendered Preference ADR is registered in the name of a decedent and has been executed by a person who purports to act as the Stock Certificate so surrendered shall immediately executor or administrator of such decedent’s estate, provided that (a) such exchange is for not more than 50 Ordinary ADSs, (b) the Ordinary ADSs are to be canceledissued in the name of such person as executor or administrator of such decedent’s estate, (c) the check tendered in payment of such subscription is drawn for the proper amount and to your order, and is otherwise in order, and (yd) there is no evidence indicating that such person is not the holder duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, you will be required to obtain all necessary proof of authority to sign in connection with exchanges for Ordinary ADSs; provided, however, that in the event that such Option Certificate proof of authority has not been received on or prior to the Expiration Date, you may obtain advice from Fresenius or Fresenius KGaA or their U.S. counsel as to whether any such exchanges may be accepted and neither you nor your agents shall have any liability whatsoever in the event it acts in good faith in accordance with such advice nor shall you or your agents be entitled required to issue such Ordinary ADSs in the event you or they do not receive such advice from either Fresenius or Fresenius KGaA prior to the Expiration Date and shall have no liability whatsoever for any such action.
(e) As soon as practicable after receipt of duly executed Letters of Transmittal, and properly submitted Preference ADRs and the correct Consideration, or, in the case of Preference ADSs tendered by book entry transfer through the facilities of the Depository Trust Company (“DTC”), properly transmitted Agents’ Messages and the correct Consideration, as well as any other duly completed documents required to be paid submitted to you in immediately available funds) promptly (but no earlier than accordance with the seventh day after Letter of Transmittal, you shall deliver the Closing Date) in exchange therefor Preference ADRs so tendered to the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Preference ADR Depositary for cancellation.
Appears in 1 contract
Sources: Exchange Agent Agreement (Fresenius Medical Care Corp)
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time, Parent shall will cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior mail to the Effective Time represented any outstanding record holders of Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Certificates (i) a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify (which shall specify including a provision confirming that delivery shall of Company Stock Certificates will be effected, and risk of loss and title to the Company Stock Certificates shall will pass, only at or following the Effective Time and upon delivery of the such Company Stock Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Agent), and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for the cash payable non-certificated shares of Parent Common Stock represented by book-entry issuable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby1.6(a). The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Company Stock Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agentfor exchange, together with such a duly executed letter of transmittal, duly executedtransmittal and such other documents as may be reasonably required by the Exchange Agent or Parent, (xA) the holder of such Company Stock Certificate shall will be entitled to receive promptly in exchange therefor non-certificated shares of Parent Common Stock represented by book-entry equal to the Cash Consideration (to be paid in immediately available funds) which number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 2.07(c1.6(a), and (B) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Company Stock Certificate so surrendered shall immediately will be canceled. Until surrendered as contemplated by this Section 1.8(b), each Company Stock Certificate held by a Company Stockholder will be deemed, from and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has Effective Time, to represent only the right to receive pursuant the Merger Consideration. If any Company Stock Certificate will have been lost, stolen or destroyed, the Exchange Agent will require the owner of such lost, stolen or destroyed Company Stock Certificate to Section 2.10 hereof (which shall include provide an appropriate affidavit and, in the interest payment specified in Section 2.10)Exchange Agent’s discretion, to deliver a bond as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Company Stock Certificate.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Within ten (10) days after the date hereofEffective Date, Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Capital Stock (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom whose shares are being converted into the Exchange Agent receives a written request Merger Consideration pursuant to Section 3.1 hereof (less any shares held in escrow pursuant to Section 3.9 hereof), (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify, including appropriate investment representations)(the "Letter of Transmittal") and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration (less any shares held in escrow pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein3.9 hereof). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittaltransmittal and a Shareholder Certificate in the form of Exhibit E-1 or E-2, as applicable, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration number of shares of Parent Common Stock (to be paid less any shares held in immediately available funds) which such holder has the right to receive escrow pursuant to Section 3.9 hereof) to which the provisions holder of Company Common Stock is entitled pursuant to Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock 3.1 hereof. The Certificate so surrendered shall immediately forthwith be canceled, and (y) . No interest will accrue or be paid to the holder of such Option any outstanding Company Common Stock. From and after the Effective Date, until surrendered as contemplated by this Section 3.7, each Certificate shall be entitled deemed for all corporate purposes to receive (to be paid in immediately available funds) promptly (but no earlier than evidence the seventh day after number of shares of Parent Common Stock into which the Closing Date) in exchange therefor the consideration which shares of Company Common Stock represented by such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Certificate have been converted.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Infospace Inc)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent INTRAGRAPHICS, INC. or its appointed designee shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Company Common Stock (“Company Certificates”) whose shares are converted into the "Stock Certificates") and right to each holder of record of a certificate or instrument which immediately prior to receive the Effective Time represented any outstanding Company Options (the "Option Certificates" andMerger Shares, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall passpass to INTRAGRAPHICS, INC., only at or following the Effective Time and upon delivery of the Company Certificates to the Exchange Agent INTRAGRAPHICS, INC. and which shall be in such form and have such other provisions as Parent and the Company INTRAGRAPHICS, INC. may reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the cash payable Merger Shares and any dividends or other distributions pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinSection. Upon surrender of a Stock Certificate or Option CertificateCompany Certificates for cancellation to INTRAGRAPHICS, as the case may be, to the Exchange AgentINC., together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder holders of such Stock Certificate Company Certificates shall be entitled to receive promptly the Merger Shares in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) therefore and the Stock Certificate Company Certificates so surrendered shall immediately forthwith be canceled. Notwithstanding the foregoing, if any Company Certificate is lost, stolen, destroyed or mutilated, such holder shall provide evidence reasonably satisfactory to INTRAGRAPHICS, INC. as to such loss, theft, destruction or mutilation and (y) the an affidavit in form and substance satisfactory to INTRAGRAPHICS, INC., and, thereupon, such holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) Merger Shares in exchange therefor therefore and the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which Company Certificates so surrendered shall include the interest payment specified in Section 2.10)forthwith be canceled.
Appears in 1 contract
Exchange Procedures. Commencing on After the 35th day after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock CertificatesCOMPANY CERTIFICATES") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Common Stock whose shares were converted into the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates"right to receive Merger Shares pursuant to Section 3.01(a) from whom shall surrender each such Company Certificate for cancellation to the Exchange Agent receives a written request (i) or to such other agent or agents as may be appointed by Parent, together with a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only at or following the Effective Time and upon delivery receipt of the Company Certificates to by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ), duly completed and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10validly executed, and such other documents as the case may be, with respect to the shares of Common Stock or Company Options formerly represented therebybe reasonably required by Parent. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Company Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (therefor, and Parent shall cause to be paid in immediately available funds) which delivered to such holder has (or its nominee), in accordance with SCHEDULE II hereto, (i) a certificate representing the right to receive pursuant to the provisions number of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration whole Merger Shares which such holder has the right to receive pursuant to Section 2.10 hereof 3.01(a) and (ii) that portion of the Cash Consideration which such holder has the right to receive pursuant to Section 3.01(a), and the Company Certificate so surrendered shall include forthwith be canceled. Until so surrendered, each outstanding Company Certificate that, prior to the interest Effective Time, represented shares of Company Common Stock will be deemed from and after the Effective Time, for all corporate purposes other than the payment specified in Section 2.10)of dividends, to evidence the ownership of the number of full Merger Shares into which such shares of Company Common Stock shall have been so converted.
Appears in 1 contract
Sources: Merger Agreement (724 Solutions Inc)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent but in any case no later than five days after the Effective Time, the Surviving Corporation shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record (as of the Effective Time) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Stock whose shares were converted into the "Option Certificates" and, collectively together with right to receive the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Merger Consideration pursuant to Section 2.01: (i) a letter of transmittal (a “Letter of Transmittal”) (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Paying Agent and which shall be in such form and have such other provisions as Parent and Purchaser or the Company Surviving Corporation may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for payment of the cash payable pursuant to Section 2.07(c) or 2.10, as Merger Consideration. Upon surrender for cancellation of the case may be, with respect Certificates to the shares Paying Agent or to such other agent or agents as may be appointed by Purchaser, together with such Letter of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (Transmittal, duly completed and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time validly executed in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, instructions thereto and such other documents as may reasonably be required by the case may be, to the Exchange Paying Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate Certificates shall be entitled to receive promptly in exchange therefor the Cash Merger Consideration (to be paid in immediately available funds) which such holder has is entitled pursuant to Section 2.01, and the Certificates so surrendered shall forthwith be canceled except as set forth in Section 2.05. Until so surrendered, outstanding Certificates will be deemed from and after the Effective time, for all corporate purposes, to evidence ownership of the right to receive pursuant the Merger Consideration and the CVRs attributable to such Certificates. Notwithstanding the foregoing, the Surviving Corporation shall cause the Paying Agent to deliver a Letter of Transmittal to the provisions Principal Stockholders on the day of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) Effective Time and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate Principal Stockholders shall be entitled to receive (to be paid prompt payment by wire transfer in immediately available funds) promptly (but no earlier than accordance with the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment instructions specified in Section 2.10)such Letter of Transmittal.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereofEffective Time, Parent shall cause will instruct the Exchange Agent to promptly deliver mail to each holder of record of a certificate or the certificates evidencing and representing outstanding shares of the Common Stock and Preferred Stock (the "Stock CertificatesCERTIFICATES") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request )
(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 at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) ), and (ii) instructions for effecting to effect the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the certificates evidencing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon Preferred Stock, as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinapplicable. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, Agent together with such letter of transmittal, duly executed, (x) and such other customary documents as may be required pursuant to such instructions, the holder of such Stock Certificate Company Shareholders shall be entitled to receive promptly in exchange therefor (A) certificates evidencing that number of whole shares of Parent Common Stock or the Cash Consideration (to be paid in immediately available funds) Parent Preferred Stock, as applicable which such holder the Company Shareholders has the right to receive in accordance with the Exchange Ratio in respect of the Common Shares or Preferred Shares, as applicable, formerly evidenced by such Certificate, (B) any dividends or other distributions to which such holder is entitled pursuant to Section 1.7(c), and (C), if applicable, Contingent Shares, in each case without any interest thereon (the provisions shares of Section 2.07(c) (provided that Parent Common Stock, Parent Preferred Stock Certificates delivered to and Contingent Shares being, collectively, the Exchange Agent at the Closing shall be paid at the Closing) "MERGER CONSIDERATION"), and the Stock Certificate so surrendered shall immediately forthwith be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Within ten (10) days after the date hereofEffective Date of the Merger, Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time Date of the Merger represented any outstanding Company Options shares of EPub Capital Stock (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom whose shares are being converted into the Exchange Agent receives a written request Merger Consideration pursuant to Section 3.1 hereof (less any shares held in escrow pursuant to Section 3.6 hereof), (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company FV may reasonably specify, including appropriate investment representations to be made by each such stockholder) (the "Letter of Transmittal") and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration (less any shares held in escrow pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein3.6 hereof). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by FV, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration number of shares of FV Common Stock (to be paid less any shares held in immediately available funds) which such holder has the right to receive escrow pursuant to Section 3.6 hereof) to which the provisions holder of EPub Common Stock is entitled pursuant to Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock 3.1 hereof. The Certificate so surrendered shall immediately forthwith be canceled, and (y) . No interest will accrue or be paid to the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day any outstanding EPub Common Stock. From and after the Closing Date) in exchange therefor Effective Date of the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10).Merger, until surrendered as contemplated
Appears in 1 contract
Exchange Procedures. Commencing on Within two (2) Business Days following the 35th day after Effective Time, the date hereofStockholders’ Representative shall send via email (if known) or, Parent shall cause the Exchange Agent to promptly deliver if a valid email address is unavailable, via U.S. mail to each holder of record (as of the Effective Time) of: (i) a certificate or certificates representing outstanding shares of Common Stock or an instrument or instruments (the "Stock “Certificates") and to each holder of record of a certificate or instrument ”), which immediately prior to the Effective Time represented any outstanding shares of Company Options Capital Stock whose shares were converted into the right to receive the Merger Consideration pursuant to Sections 2.6(a)-2.6(e) and (ii) the "Option Certificates" and, collectively together with Company Warrants which were converted into the Stock Certificates, right to receive the "Certificates") from whom the Exchange Agent receives a written request Merger Consideration pursuant to Section 2.7: (iA) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates and/or Company Warrants shall pass, only at or following the Effective Time and upon delivery of the Certificates and/or Company Warrants to the Exchange Paying Agent and which shall be in such form and have such other provisions as Parent and are reasonably acceptable to the Company may reasonably specifyCompany) and (iiB) instructions for use in effecting the surrender of the Certificates and/or Company Warrants in exchange for cash constituting the Merger Consideration (less amounts of cash payable pursuant to Section 2.07(c) or 2.10, as be deposited in the case may be, Escrow Fund and the Representative Reimbursement Fund with respect to the shares of Common Stock or such Company Options formerly represented therebyStockholder in accordance with Article VIII). The letter of transmittal with respect Prior to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent the Stockholders’ Representative shall cause provide to any Company Securityholder who is to receive in excess of $2,000,000 in connection with the Exchange Agent to mail transactions contemplated hereby, upon the written or email request of such holder (or the Company on behalf of such holder), a letter of transmittal, and any such holder who shall deliver a duly completed letter of transmittal and the instructions described above other items set forth in this Section 2.8(c) to each the Paying Agent on or prior to the Closing Date (the date of receipt by the Paying Agent of all such duly completed materials with respect to a particular Company Securityholder, the “Receipt Date”) shall receive the amounts of Merger Consideration such holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be is entitled to surrender such Certificate to receive hereunder on the Exchange Agent at later of (i) the Effective Time in accordance with date that is two (2) Business Days following the procedures described hereinReceipt Date and (ii) the date that is one (1) Business Day following the Closing Date. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Certificates and/or Company Warrants for cancellation to the Exchange Paying Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Paying Agent, (x) the holder of record of such Stock Certificate Certificates and/or Company Warrants (unless such Certificates represent Dissenting Shares) shall be entitled to receive promptly in exchange therefor the Cash amount of cash, without interest, constituting the Merger Consideration such holder is entitled pursuant to Section 2.6 and/or 2.7, as applicable (less amounts of cash to be paid deposited in immediately available fundsthe Escrow Fund and the Representative Reimbursement Amount with respect to such Company Securityholder in accordance with Article VIII) which such and the Certificates and/or Company Warrants so surrendered shall forthwith be canceled. Until so surrendered, outstanding Certificates and/or Company Warrants (other than those Certificates representing Dissenting Shares, unless the holder has thereof loses its right to appraisal) will be deemed from and after the Effective Time, for all corporate purposes, to evidence the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration Merger Consideration into which such holder has the right to receive pursuant to Section 2.10 hereof (which securities shall include the interest payment specified in Section 2.10)have been so converted.
Appears in 1 contract
Sources: Merger Agreement (Volcano Corp)
Exchange Procedures. Commencing on the 35th day As soon as practicable after the date hereofEffective ------------------- Time, Parent the Survivin g Corporation shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Preferred Stock or Common Stock (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom whose shares are being converted into Parent Common Stock pursuant to Section 4.1 hereof and the Exchange Agent receives a written request Reorganization Agreement, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinStock. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (number of shares of Parent Common Stock to which the holder of Company Preferred Stock or Common Stock is entitled pursuant to Section 4.1 hereof and the Reorganization Agreement. The Certificate so surrendered shall forthwith be paid in immediately available funds) canceled. In the event of a transfer of ownership of Company Preferred Stock or Common Stock which is not registered on the transfer records of the Company, the appropriate number of shares of Parent Common Stock may be delivered to a transferee if the Certificate representing such holder has capital stock of the Company is presented to the Exchange Agent and accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 4.2, each Certificate shall be deemed at any time after the Effective Time to represent the right to receive pursuant to upon such surrender the number of shares of Parent Common Stock as provided by this Section 2 and the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)California Code.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent Othnet or its appointed designee shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Company Common Stock (the "Stock Company Certificates") and whose shares are converted into the right to each holder of record of a certificate or instrument which immediately prior to receive the Effective Time represented any outstanding Company Options (the "Option Certificates" andMerger Shares, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall passpass to Othnet, only at or following the Effective Time and upon delivery of the Company Certificates to the Exchange Agent Othnet and which shall be in such form and have such other provisions as Parent and the Company Othnet may reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the cash payable Merger Shares and any dividends or other distributions pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein2.6(b). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Company Certificates for cancellation to the Exchange AgentOthnet, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder holders of such Stock Certificate Company Certificates shall be entitled to receive promptly the Merger Shares in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive therefore and any dividends or distributions payable pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 2.6(b), and the Stock Certificate Company Certificates so surrendered shall immediately forthwith be canceled. Until so surrendered, outstanding Company Certificates will be deemed from and (y) after the Effective Time, for all corporate purposes, subject to Section 2.8, to evidence the ownership of the number of full shares of Othnet Preferred Stock into which such shares of the Company Common Stock shall have been so converted and any dividends or distributions payable pursuant to Section 2.6(b). Notwithstanding the foregoing, if any Company Certificate is lost, stolen, destroyed or mutilated, such holder of shall provide evidence reasonably satisfactory to Othnet as to such Option Certificate loss, theft, destruction or mutilation and an affidavit in form and substance satisfactory to Othnet, and, thereupon, such holder shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) Merger Shares in exchange therefor the consideration which such holder has the right to receive therefore and any dividends or distributions payable pursuant to Section 2.10 hereof (which 2.6(b), and the Company Certificates so surrendered shall include the interest payment specified in Section 2.10)forthwith be canceled.
Appears in 1 contract
Sources: Merger Agreement (Othnet Inc)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and but in any event not later than three within five (35) Business Days) after following the Effective TimeClosing Date, Parent shall cause or the Exchange Agent to shall mail a letter of transmittal and the instructions described above in Parent’s standard form to each holder Shareholder at the address set forth opposite each such person’s name on the Spreadsheet. After receipt of record such letter of a Certificate who has not previously requested such transmittal and any other customary documents from that Parent or the Exchange Agent. Each holder Agent may reasonably require in order to effect the exchange (the “Exchange Documents”), the Shareholders will surrender the certificates representing their shares of a Certificate shall be entitled to surrender such Certificate Company Common Stock (the “Company Certificates”) to the Exchange Agent at the Effective Time in accordance for cancellation together with the procedures described hereinduly completed and validly executed Exchange Documents. Upon surrender of a Stock Company Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, or such other agent or agents as may be appointed by Parent, together with such letter of transmittalExchange Documents, duly executedcompleted and validly executed in accordance with the instructions thereto, (xsubject to the terms of Section 1.8(e) hereof, the holder of such Stock Company Certificate shall be entitled to receive promptly from the Exchange Agent in exchange therefor therefor, no later than thirty (30) days thereafter, a certificate representing the Cash Consideration (number of whole shares of Parent Common Stock and the cash payment to be paid in immediately available funds) which such holder has is entitled pursuant to Section 1.6 hereof (less such holder’s respective portion of the Total Holdback Amount to be held back pursuant to Section 1.8(b) hereof and Article VII hereof, if any), and the Company Certificate so surrendered shall be cancelled. Until so surrendered, each Company Certificate outstanding after the Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive pursuant to the provisions number of Section 2.07(c) (provided that full shares of Parent Common Stock Certificates delivered to and cash into which such shares of Company Common Stock shall have been so converted. No portion of the Exchange Agent at the Closing shall Total Consideration will be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) to the holder of any unsurrendered Company Certificate with respect to shares of Company Common Stock formerly represented thereby until the holder of record of such Option Company Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than surrender such Company Certificate and the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive Exchange Documents pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)hereto.
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
Exchange Procedures. Commencing (1) Five (5) days prior to the Effective Time, or as soon as practical prior to the Effective Time, Mid Penn shall (A) deposit, or shall cause to be deposited, with the Exchange Agent for the benefit of the holders of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇mon Stock, an amount of cash necessary to make payments of any dividends or distributions with a record date occurring on the 35th day or after the date hereofEffective Time with respect to the Merger Consideration (without any interest on any such dividends or distributions) and cash for fractional shares pursuant to Section 3.1(h)) and (B) provide the Exchange Agent with the irrevocable authorization to issue such cash and sufficient shares of Mid Penn Common Stock in book entry form (“Book-Entry Shares”) (such cash and Book-Entry Shares, Parent together with any dividends or distributions with respect thereto, being hereinafter referred to as the “Exchange Fund”).
(2) Promptly after the Effective Time, but in no event later than five (5) Business Days thereafter, Mid Penn shall cause the Exchange Agent to promptly mail or deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which Person who was, immediately prior to the Effective Time represented any outstanding Company Options (Time, a holder of record of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇mon Stock a notice advising such holders of the "Option Certificates" andeffectiveness of the Merger, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives including a written request (i) a form of letter of transmittal in a form reasonably satisfactory to Mid Penn and ▇▇▇▇▇▇▇ ▇▇▇▇ (“Letter of Transmittal”) containing instructions for use in effecting the surrender of Certificates in exchange for the Merger Consideration and cash for any fractional shares of Mid Penn Common Stock which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon (i) with respect to shares evidenced by Certificates, proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent of the Certificates and the Company may reasonably specify) transmittal materials, duly, completely and validly executed in accordance with the instructions thereto, and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to book-entry shares, proper delivery of an “agent’s message” regarding the book-entry transfer of book-entry shares (or such other evidence (if any) of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon transfer as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agentmay reasonably request). Each holder of a Certificate shall be entitled to Upon surrender such Certificate to the Exchange Agent at the Effective Time of a Certificate or book-entry shares for cancellation together with such Letter of Transmittal, duly executed and completed in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificateinstructions thereto, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate or book-entry shares shall promptly be entitled to receive promptly provided in exchange therefor therefor, but in no event later than five (5) Business Days after due surrender, a certificate, or at the Cash election of Mid Penn, a statement reflecting shares issued in book-entry form, representing the Merger Consideration (to be paid in immediately available funds) which such holder has the right to receive is entitled pursuant to the provisions of this Article III, plus a check for any amounts due pursuant to Section 2.07(c) (provided that Stock Certificates delivered 3.1(h), any dividends or other distributions to the Exchange Agent at the Closing shall be paid at the Closingwhich such holder is entitled pursuant to Section 3.2(a)(1) and the Stock Certificate or book-entry share so surrendered shall immediately forthwith be canceled, and (y) the holder of such Option Certificate shall cancelled. No interest will accrue or be entitled paid with respect to receive (any property to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)delivered upon surrender of Certificates or book-entry shares.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day (i) As soon as reasonably practicable (and in any event within 5 business days) after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates"each, a “Certificate”) and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding shares of Company Options Capital Stock, whose shares were converted into the right to receive cash pursuant to Section 1.6(a), (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) a letter of transmittal in customary form as Parent may reasonably specify prior to the Closing (which letter shall (x) be provided to the Company for review a reasonable period prior to the Effective Time, (y) include any comments reasonably submitted by the Company and (z) specify that delivery shall be effected, and risk of loss and title to the Certificates a Certificate shall pass, only at or following upon receipt of such Certificate by the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Paying Agent), and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(ccash.
(ii) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a cash payment pursuant to Section 1.6(a), without interest. In the Cash Consideration event of a transfer of ownership of shares of Company Capital Stock that is not registered in the transfer records of the Company, payment pursuant to Section 1.6(a) may be made to such a transferee if the Certificate formerly representing such Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence to the reasonable satisfaction of the Surviving Corporation that any applicable stock transfer Taxes have been paid or are not applicable.
(iii) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of such fact by a stockholder of the Company (a “Company Stockholder”) claiming such Certificate to be paid lost, stolen or destroyed, the Paying Agent will pay such Company Stockholder in immediately available funds) which exchange for such holder has the right to receive pursuant to the provisions lost, stolen or destroyed Certificate, that amount of Section 2.07(c) (provided cash that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate Company Stockholder shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(a). When authorizing such payment in exchange therefor, the Paying Agent 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 the Paying Agent a reasonable form of bond as indemnity, as it shall direct in accordance with (which and amounts prescribed by) its customary practices, policies and procedures, against any claim that may be made against the Paying Agent with respect to the Certificate alleged to have been lost, stolen or destroyed. As a further condition to payment with respect to any Certificate that shall include have been lost, stolen or destroyed, Parent may require such Company Stockholder to whom payment is to be made to agree in writing to indemnify and hold harmless Parent with respect to any loss or expense incurred by Parent as a result of the interest payment specified in Section 2.10)loss, theft or destruction of such Certificate.
Appears in 1 contract
Sources: Merger Agreement (Sigmatel Inc)
Exchange Procedures. Commencing on the 35th day (i) Promptly (and in any event within three Business Days) after the date hereofEffective Time, the Parent shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock Certificate (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (iA) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 1.7(g)) to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Paying Agent, and (iiB) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 1.7(g)) in exchange for the cash Merger Consideration payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinthereto. Upon surrender of a Stock Certificate (or Option Certificate, affidavit of loss in lieu thereof as the case may be, provided in Section 1.7(g)) to the Exchange Agent, together Paying Agent in accordance with the terms of such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly paid in exchange therefor the Cash Consideration (to be paid a cash amount in immediately available fundsfunds equal to (1) which the number of shares of Company Common Stock formerly represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 1.7(g)) multiplied by (2) the Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled.
(ii) Notwithstanding anything to the contrary in this Agreement, any holder of Uncertificated Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder has the right is entitled to receive pursuant to this Article I. In lieu thereof, each holder of record of one or more Uncertificated Shares shall upon receipt by the provisions Paying Agent of Section 2.07(can “agent’s message” in customary form with respect to any Uncertificated Share (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) (provided that Stock Certificates delivered to be promptly paid the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceledMerger Consideration pursuant to, and (y) in accordance with, the holder terms of this Agreement in respect of such Option Certificate Uncertificated Share, and such Uncertificated Share shall forthwith be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)cancelled.
Appears in 1 contract
Sources: Merger Agreement (Intricon Corp)
Exchange Procedures. Commencing on (a) Immediately prior to the 35th day after Effective Time, for the date hereofbenefit of the holders of Certificates, Parent Washington Federal shall cause deliver to the Exchange Agent an amount of cash sufficient to promptly deliver make all payments required to be made pursuant to this Article III, in exchange for Certificates representing outstanding shares of FFSW Common Stock in accordance with this Article III (such cash amount, the "Exchange Fund"). The Exchange Agent shall invest such deposited cash as directed by Washington Federal, provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇'▇ 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 $500 million. Any net profit resulting from, or interest or income produced by, such investments will be payable to Washington Federal.
(b) As soon as reasonably practicable after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), the Exchange Agent shall mail to each holder of record of a certificate Certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) 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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration into which the shares of FFSW Common Stock represented by such Certificate or Certificates shall have been converted pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby3.01. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon proper surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for exchange and cancellation to the Exchange Agent, ,together with such a properly completed letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor therefor, promptly after the Cash Consideration Effective Time, the Merger Consideration. Until surrendered as contemplated by this Section 3.02(b), each Certificate (other than Certificates representing Treasury Stock and other than Dissenting Shares) shall be deemed at any time after the Effective Time to be paid in immediately available funds) which such holder has represent only the right to receive pursuant upon such surrender the Merger Consideration provided in Section 3.01 and any unpaid dividends and distributions on the shares of FFSW Common Stock represented thereby with a record date prior to the provisions Effective Time and which remain unpaid at the Effective Time.
(c) If payment of Section 2.07(cthe Merger Consideration is to be made to a Person other than the registered holder of the Certificate surrendered in exchange therefor, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate form of assignment separate from the Certificate) (provided that Stock Certificates delivered and otherwise in proper form for transfer, and the Person requesting such payment shall pay to the Exchange Agent at in advance any transfer or other Taxes required by reason of the Closing payment of the Merger Consideration to a Person other than that of the registered holder of the Certificate surrendered or otherwise establish to the satisfaction of the Exchange Agent that such Taxes have been paid or are not payable.
(d) At and after the Effective Time, the stock transfer books of FFSW shall be closed and there shall be no transfers on the stock transfer books of FFSW of the shares of FFSW Common Stock which were issued and outstanding immediately prior to the Effective Time. At the Effective Time, holders of FFSW Common Stock shall cease to be, and shall have no rights as, shareholders of FFSW other than to receive the consideration provided under this Article III, subject to Section 3.03 of this Agreement. On or after the Effective Time, any Certificates presented to Washington Federal or the Exchange Agent for transfer shall be cancelled and, subject to Section 3.03, exchanged for the Merger Consideration as provided herein.
(e) Any portion of the Exchange Fund that remains unclaimed by the shareholders of FFSW for nine months after the Effective Time (as well as any proceeds from any investment thereof) shall be delivered by the Exchange Agent to Washington Federal. Any shareholders of FFSW who have not theretofore complied with Section 3.02(b) shall thereafter look only to Washington Federal for the Merger Consideration deliverable in respect of each share of FFSW Common Stock such shareholder holds as determined pursuant to this Agreement, in each case without any interest thereon. If outstanding Certificates for shares of FFSW Common Stock are not surrendered or the payment for them is not claimed prior to the date on which the applicable Merger Consideration would otherwise escheat to or become the property of any Governmental Authority, the unclaimed items shall, to the extent permitted by abandoned property and any other applicable law, become the property of Washington Federal (and to the extent not in its possession shall be delivered to it), free and clear of all claims or interest of any Person previously entitled to such property. Neither the Exchange Agent nor any party to this Agreement shall be liable to any holder of stock represented by any Certificate for any consideration paid at the Closing) to a public official pursuant to applicable abandoned property, escheat or similar laws. Washington Federal and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate Exchange Agent shall be entitled to rely upon the stock transfer books of FFSW to establish the identity of those Persons entitled to receive the Merger Consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, Washington Federal and the Exchange Agent shall be entitled to deposit any Merger Consideration represented thereby in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(f) Washington Federal (through the Exchange Agent, if applicable) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of FFSW Common Stock such amounts as Washington Federal or the Exchange Agent are required to deduct and withhold under the Code or applicable law. Any amounts so withheld shall be treated for all purposes of this Agreement as having been paid to the holder of FFSW Common Stock in respect of which such deduction and withholding was made by Washington Federal.
(g) 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 paid lost, stolen or destroyed and, if required by Washington Federal, the posting by such Person of a bond in immediately available funds) promptly (but no earlier than such amount as Washington Federal may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the seventh day after the Closing Date) Exchange Agent will issue in exchange therefor for such lost, stolen or destroyed Certificate the consideration which such holder has the right to receive Merger Consideration deliverable in respect thereof pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)this Agreement.
Appears in 1 contract
Sources: Merger Agreement (First Federal Banc of the Southwest Inc)
Exchange Procedures. Commencing on the 35th day Promptly (and in any event within two Business Days) after the date hereofEffective Time, Parent the Surviving Corporation shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which Shares immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" andeach, collectively together with the Stock Certificates, the "Certificates"a “Record Holder of Shares”) from whom the Exchange Agent receives a written request (other than Excluded Shares)
(i) 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 at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(f)) to the Exchange Agent and which shall Paying Agent, such letter of transmittal to be in such customary form and to have such other provisions as Parent and the Company may reasonably specify) agree, and (ii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(f)) in exchange for the cash payable amount to which such Record Holder of Shares is entitled as a result of the Merger pursuant to Section 2.07(c4.1(a). If any Excluded Shares cease to be Excluded Shares pursuant to Section 4.2(a), the Surviving Corporation shall cause the Paying Agent promptly (and in any event within two Business Days) after such Excluded Shares cease to be Excluded Shares to mail to the applicable Record Holder of Shares the letter of transmittal and instructions referred to in the immediately preceding sentence, with respect to such Shares. Upon delivery of the letter of transmittal duly executed by the applicable Record Holder of Shares (other than Excluded Shares) and the surrender of a Certificate (or 2.10affidavit of loss in lieu of the Certificate as provided in Section 4.2(f)) to the Paying Agent in accordance with the terms of such letter of transmittal (or, if such Shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such Shares on a book-entry account statement), the holder of such Certificate shall be entitled to receive in exchange therefor a cash amount in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 4.2(h)) equal to the product of (x) the number of Shares represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(f)) and (y) the Per Share Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or affidavits of loss, as the case may be. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, with respect a check for any cash to be delivered upon due surrender of the Certificate may be issued to such transferee if the Certificate formerly representing such Shares is presented to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Paying Agent, together with accompanied by all documents required to evidence and effect such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled transfer and to receive promptly in exchange therefor the Cash Consideration (to be evidence that any applicable stock transfer Taxes have been paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)or are not applicable.
Appears in 1 contract
Sources: Merger Agreement (Rue21, Inc.)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any no event not -------------------- later than three (3) Business Daysbusiness days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record an outstanding certificate or certificates that prior thereto represented shares of a Certificate who has not previously requested such documents from Company Common Stock other than Excluded Shares (the Exchange Agent. Each holder of a Certificate shall be entitled to "Certificates") shall, upon surrender such Certificate to the Exchange Agent at of such Certificate or Certificates (or, if such shares are held in book-entry or other uncertificated form, upon the Effective Time in accordance with entry through a book-entry transfer agent of the procedures described herein. Upon surrender of such shares of Company Common Stock on a Stock Certificate or Option Certificate, as book-entry account statement (any references herein to "Certificates" shall be deemed to include references to book-entry account statements relating to the case may be, to ownership of shares of Company Common Stock)) and acceptance thereof by the Exchange Agent, together with such letter be entitled to a certificate or certificates representing the number of transmittalfull shares of Surviving Corporation Common Stock, duly executedif any, (x) to be retained by the holder thereof as Retained Shares pursuant to this Agreement and the amount of cash, if any, into which the number of shares of Company Common Stock previously represented by such Certificate or Certificates surrendered shall have been converted pursuant to this Agreement or which is payable in respect of fractional shares. The Exchange Agent shall accept such Certificates upon compliance with the terms and conditions of Section 2.02 and such other reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. Notwithstanding anything to the contrary contained in this Section 2.04, the Exchange Agent shall not deliver any Merger Consideration to any holder who is, as of the date hereof, an affiliate of the Company until such holder has delivered the agreement contemplated by Section 5.09. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of Certificates, and if such Certificates are presented to the Company for transfer, they shall be canceled against delivery of the Cash Election Price and, if appropriate, certificates for Retained Shares. If any certificate for such Retained Shares is to be issued in the name of, or if cash is to be remitted to, a person other than the person in whose name the Certificate surrendered for exchange is registered, it shall be a condition of such Stock exchange that the Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Company or its transfer agent any transfer or other taxes required by reason of the remittance of cash to, or the issuance of certificates for such Retained Shares in the name of, a person other than that of the registered holder of the Certificate surrendered, or establish to the satisfaction of the Company or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.04(b), each Certificate shall be entitled deemed at any time after the Effective Time to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has represent only the right to receive pursuant to upon such surrender the provisions of Merger Consideration as contemplated by Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall 2.01. No interest will be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder or will accrue on any cash payable as Merger Consideration or in lieu of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)any fractional Retained Shares.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day (a) Immediately after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the each a "Stock Certificates") Certificate" and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificatescollectively, the "Certificates") from whom the Exchange Agent receives a written request (irepresenting QIC Shares shall surrender such Certificate(s) a letter to an officer of transmittal (SVR designated for such purpose. Each Certificate which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following immediately before the Effective Time evidenced QIC Shares shall, from and upon delivery of after the Certificates Effective Time until such Certificate is surrendered to SVR or its transfer agent, be deemed, for all corporate purposes, to evidence the right to receive the consideration set forth on Exhibit B; provided, however, that no dividend or other distribution payable to the Exchange Agent and which holder of such Certificate after the Effective Time shall be paid in respect of such form and Certificate until such Certificate is so surrendered by such holder.
(b) At the Effective Time, SVR shall make available to each Shareholder such consideration as set forth on Exhibit B (the "Merger Consideration Schedule").
(c) Notwithstanding anything to the contrary in this Section 2.3, no party hereto shall be liable to a holder of QIC Shares for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(d) In the event any Certificates evidencing QIC Shares shall have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates been lost, stolen or destroyed, SVR shall issue in exchange for such lost, stolen or destroyed certificates, the cash payable pursuant amount otherwise issuable under Section 2.2 upon the making of an affidavit of that fact by the holder thereof, provided, however, SVR may, in its discretion and as a condition precedent to Section 2.07(c) the issue thereof, require the owner of such lost, stolen or 2.10, as the case destroyed Certificates to indemnify SVR against any claim that may be, be made against SVR with respect to the shares of Common Stock Certificate alleged to have been lost, stolen or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)destroyed.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent the Company or its appointed designee shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Wireless Common Stock (the "Stock Wireless Certificates") and whose shares are converted into the right to each holder of record of a certificate or instrument which immediately prior to receive the Effective Time represented any outstanding Company Options (the "Option Certificates" andMerger Shares, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Wireless Certificates shall passpass to the Company, only at or following the Effective Time and upon delivery of the Wireless Certificates to the Exchange Agent Company and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Wireless Certificates in exchange for the cash payable Merger Shares and any dividends or other distributions pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein2.7(b). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Wireless Certificates for cancellation to the Exchange AgentCompany, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder holders of such Stock Certificate Wireless Certificates shall be entitled to receive promptly the Merger Shares in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive and any dividends or distributions payable pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 2.7(b), and the Stock Certificate Wireless Certificates so surrendered shall immediately forthwith be canceled. Until so surrendered, outstanding Wireless Certificates will be deemed from and (y) after the Effective Time, for all corporate purposes, subject to Section 2.9, to evidence the ownership of the number of full shares of Company Common Stock into which such shares of the Wireless Common Stock shall have been so converted and any dividends or distributions payable pursuant to Section 2.7(b). Notwithstanding the foregoing, if any Wireless Certificate is lost, stolen, destroyed or mutilated, such holder of shall provide evidence reasonably satisfactory to the Company as to such Option Certificate loss, theft, destruction or mutilation and an affidavit in form and substance satisfactory to the Company, and, thereupon, such holder shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) Merger Shares in exchange therefor the consideration which such holder has the right to receive and any dividends or distributions payable pursuant to Section 2.10 hereof (which 2.7(b), and Wireless Certificates so surrendered shall include the interest payment specified in Section 2.10)forthwith be canceled.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day (i) Promptly after the date hereofEffective Time, Parent but in no event later than five days after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which that immediately prior to the Effective Time represented any outstanding shares of Company Options Common Stock, whose shares were converted into the right to receive the Merger Consideration (the "Option Certificates" andand cash in lieu of fractional shares) pursuant to Section 2.7(b), collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (iA) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall be in such customary form and have such other provisions as Parent and the Company PubCo may reasonably specify); (B) such other customary documents as may be required pursuant to such instructions; and (iiC) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the and certificates representing shares of PubCo Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and cash in any event not later than three lieu of fractional shares).
(3ii) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by PubCo, together with such letter of transmittaltransmittal and other documents, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor therefore (A) the number of whole shares of PubCo Common Stock; (B) the amount of Merger Cash Consideration to which holder is entitled pursuant to Section 2.4(a), provided, that any portion of the Merger Cash deposited with the Exchange Agent more than 10 days after the Closing Date in accordance with clause (to i) of Section 2.5(a) shall be paid to the holder entitled thereto after receipt thereof by the Exchange Agent; and (C) cash (without interest) in immediately available fundsrespect of fractional shares as provided in Section 2.7(b), and the Certificate so surrendered shall forthwith be canceled.
(iii) Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Company Common Stock will be deemed from and after the Effective Time, for all corporate purposes other than the payment of dividends, to evidence: (i) the ownership of the number of full shares of PubCo Common Stock into which such holder has shares of Company Common Stock shall have been so converted; (ii) the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid an amount in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) cash in exchange therefor the consideration which such holder has in accordance with Section 2.4(a); and (iii) the right to receive pursuant to cash in lieu of the issuance of any fractional shares in accordance with Section 2.10 hereof (which shall include the interest payment specified in Section 2.102.7(b).
Appears in 1 contract
Exchange Procedures. Commencing on On or prior to the 35th day after the date hereofClosing Date, Parent shall cause to be mailed (or delivered in person at the Exchange Agent to promptly deliver Closing as directed by Company) to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Stockholder (i) a letter of transmittal (transmittal, which shall be in such form and contain such provisions as Parent and Company shall mutually agree in writing and which shall specify that delivery shall be effected, and risk of loss and title to the Certificates certificates that immediately prior to the Effective Time represented outstanding shares of Common Stock (the “Company Share Certificates”) whose shares are converted into the right to receive the Per Share Consideration pursuant to this Section 4, shall pass, only at or following the Effective Time and upon delivery of the Certificates thereof to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Agent, and (ii) instructions for use in effecting the surrender of the Company Share Certificates in exchange for the cash payable Per Share Consideration to which such Company Stockholder is entitled pursuant to this Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein4. Upon surrender of a Stock Company Share Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate Company Stockholder shall be entitled to receive promptly in exchange therefor receive, and the Cash Consideration Exchange Agent shall deliver either (to be paid in immediately available fundsi) which such holder has at the right to receive pursuant to Closing (if the provisions letter of Section 2.07(ctransmittal and Company Share Certificates are presented by Company Stockholder before or at the Closing) or (provided that Stock ii) within five (5) days of receipt of the letter of transmittal and Company Share Certificates (if not delivered to the Exchange Agent at the Closing shall be paid before or at the Closing) ), the Per Share Consideration to be received by such Company Stockholder pursuant to this Section 4, and the Stock Company Share Certificate so surrendered shall immediately forthwith be canceledcancelled. For greater certainty and without limitation, and (y) the holder Exchange Agent shall not be responsible for shares of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive Common Stock exchanged pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)a Parent Share Exchange.
Appears in 1 contract
Exchange Procedures. Commencing on (a) Immediately prior to the 35th day after Effective Time, for the date hereofbenefit of the holders of Certificates, Parent Opus shall cause deliver to the Exchange Agent an amount of cash sufficient to promptly deliver make all payments required to be made pursuant to this Article III, in exchange for Certificates representing outstanding shares of CFC Common Stock in accordance with this Article III (such cash amount, the “Exchange Fund”). The Exchange Agent shall invest such deposited cash as directed by Opus, provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated P-1 or A-1 or better by ▇▇▇▇▇’▇ 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 $500 million. Any net profit resulting from, or interest or income produced by, such investments will be payable to Opus.
(b) As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate Certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) 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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration into which the shares of CFC Common Stock represented by such Certificate or Certificates shall have been converted pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby3.01. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon proper surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for exchange and cancellation to the Exchange Agent, together with such a properly completed letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor therefor, promptly after the Cash Consideration Effective Time, the Merger Consideration. Until surrendered as contemplated by this Section 3.02(b), each Certificate (other than Certificates representing Treasury Stock and other than Dissenting Shares) shall be deemed at any time after the Effective Time to be paid in immediately available funds) which such holder has represent only the right to receive pursuant to upon such surrender the provisions of Section 2.07(c) (Merger Consideration provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)3.01.
Appears in 1 contract
Exchange Procedures. Commencing on (a) As of the 35th day after Effective Time, Company shall have deposited with the date Exchange Agent for the benefit of the holders of shares of Seller Stock, for exchange in accordance with this Section 2.5 through the Exchange Agent, certificates representing the shares of Company Stock issuable pursuant to Section 2.3 and funds in an amount not less than the amount of cash payable pursuant to Elections (as hereinafter defined) and to fractional shares of Company Stock which would otherwise be payable in connection with Section 2.3 hereof, Parent but for the operation of Section 2.4 of this Agreement (collectively, the "Exchange Fund").
(b) Company shall cause direct the Exchange Agent to promptly deliver mail on the Mailing Date (as hereinafter defined) to each holder of record of a certificate or certificates representing outstanding shares of Common Seller Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request ): (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and Agent), (ii) an Election Form (as hereinafter defined), and (iii) instructions for use in effecting the surrender of the Certificates Certificates. Upon surrendering of a Certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Company, together with such letters of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor the consideration provided herein (subject to the provisions of Section 2.7), and the Certificate so surrendered shall forthwith be canceled. In the event a Certificate is surrendered representing Seller Stock, the transfer of ownership which is not registered in the transfer records of Seller, the consideration provided herein will be paid if the Certificate representing such Seller Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.5 and except as provided in subsection (g) hereof, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the consideration provided herein. Notwithstanding anything to the contrary set forth herein, if any holder of shares of Seller Stock should be unable to surrender the Certificates for such shares, because they have been lost or destroyed, such holder may deliver in lieu thereof, in the discretion of Company, such bond in form and substance and with surety reasonably satisfactory to Company and thereafter shall be entitled to receive the consideration provided herein. No interest shall be paid on the Per Share Cash Consideration (as hereinafter defined).
(c) No dividends or other distributions declared or made after the Effective Time with respect to Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate who is to receive Company Stock pursuant to the provisions hereof until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate by a holder receiving Company Stock pursuant to the provisions hereof, there shall be paid to the record holder of the Certificates representing whole shares of Company Stock issued in exchange therefore, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Company Stock to which such holder is entitled pursuant to Section 2.07(c2.4 and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Company Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Company Stock.
(d) There shall be no further registration of transfers on the stock transfer books of Seller or Company of the shares of Seller Stock, which were outstanding immediately prior to the Effective Time. If after the Effective Time, Certificates are presented to Company for any reason, they shall be canceled and exchanged as provided in this Agreement.
(e) Any portion of the Exchange Fund which remains undistributed to the shareholders of Seller following the passage of six months after the Effective Time shall be delivered to Company, upon demand, and any shareholders of Seller who have not theretofore complied with this Section 2.5 shall thereafter look only to Company for payment of their claim for the consideration provided herein.
(f) Neither Company nor Seller shall be liable to any holder of shares of Seller Stock for such shares (or dividends or distributions with respect thereto) or 2.10cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, as the case may be, escheat or similar law.
(g) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the shares of Common Company Stock held by it from time to time hereunder, except that it shall receive and hold all dividends or Company Options formerly represented thereby. The letter of transmittal other distributions paid or distributed with respect to Option Certificates shall contain language waiving any claims such shares of Company Stock for the holders thereof may have against Parent or account of the Company or any Affiliates of either with respect to the Company OptionsPersons entitled thereto. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder Former shareholders of record of a Certificate Seller Stock who has not previously requested such documents from are to receive shares of Company Stock pursuant to the Exchange Agent. Each holder of a Certificate provisions hereof shall be entitled to surrender such Certificate to the Exchange Agent at vote after the Effective Time at any meeting of Company shareholders the number of whole shares of Company Stock into which their respective shares of Seller Stock are converted, regardless of whether such holders have exchanged their Certificates for certificates representing Company Stock in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)this Agreement.
Appears in 1 contract
Exchange Procedures. Commencing on At the 35th day after the date hereofEffective Time, Parent shall cause the Exchange Agent shall cause to promptly deliver be delivered to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any evidenced outstanding shares of Company Options Capital Stock whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 2.7 (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request and, if applicable, cash in lieu of fractional shares pursuant to Section 2.9 (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 at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting to effect the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the certificates evidencing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinStock. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) and such other documents as may be required by such instructions, the holder of such Stock Certificate Certificates shall be entitled to receive promptly in exchange therefor a certificate evidencing the Cash Consideration number of whole shares of Parent Common Stock (less the number of shares of Parent Common Stock to be paid deposited in immediately available fundsthe Escrow Fund on such holder's behalf pursuant to Section 2.8(i)) to which such holder has is entitled pursuant to Section 2.7, plus cash in lieu of fractional shares in accordance with Section 2.9, and the Certificate so surrendered shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that, prior to the Effective Time, evidenced shares of Company Capital Stock will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends or other distributions, to evidence the ownership of the number of whole shares of Parent Common Stock into which such shares of Company Capital Stock shall have been so converted and the right to receive pursuant to an amount in cash in lieu of the provisions issuance of any fractional shares in accordance with Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)2.9.
Appears in 1 contract
Sources: Merger Agreement (Atmi Inc)
Exchange Procedures. Commencing on the 35th day (a) Promptly after the date hereofEffective Time (but in no event later than five (5) Business Days following the Effective Time), Parent shall cause the Exchange Paying Agent to promptly deliver mail to each individual, partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, unincorporated organization or other entity ("Person") who was at the Effective Time a holder of record of a certificate or certificates representing outstanding shares of Company Common Stock (entitled to receive the "Stock Certificates") and Merger Consideration pursuant to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Section 1.5(a): (i) a letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates that formerly evidenced the shares of Company Common Stock shall pass, only at or following the Effective Time and upon proper delivery of the such Certificates (or affidavits of loss in lieu thereof) to the Exchange Agent Paying Agent, and which shall be in such form and have such other customary provisions with respect to delivery of an "agent's message" with respect to shares held in book-entry form as Parent and the Company Special Committee (on behalf of the Company) may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates pursuant to such letter of transmittal in exchange for the cash payable pursuant to Section 2.07(c) or 2.10Merger Consideration (which instructions shall provide that, at the election of the surrendering holder, such Certificates (including, as applicable, any book-entry shares) may be surrendered and the Merger Consideration in exchange therefor collected by hand delivery), in each case may be, with respect in form and substance reasonably agreed to by Parent and the Special Committee (on behalf of the Company).
(b) Upon (i) surrender to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Paying Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agentfor cancellation, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto or (ii) receipt of an "agent's message" by the Paying Agent, as applicable, in the case of shares held in book-entry form, and such other documents as may be reasonably required by the Paying Agent and reasonably approved by Parent and the Special Committee (x) on behalf of the Company), the holder of such Stock Certificate (including, as applicable, book-entry shares) shall be entitled to receive promptly in exchange therefor respect of each share previously represented thereby cash in the Cash amount of the Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or will accrue on any cash payable pursuant to Sections 1.5(a), 1.6(b), 1.6(c) or 1.7(a) .
(c) If payment of the Merger Consideration (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 (i) the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid in immediately available fundsany transfer and other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of such Certificate surrendered or shall have established to the reasonable satisfaction of the Paying Agent that such tax either has been paid or is not payable.
(d) which such holder has Until surrendered as contemplated by this Section 2.2, each Certificate (including, as applicable, book-entry shares) shall be deemed at all times after the Effective Time to represent only the right to receive pursuant to upon such surrender the provisions Merger Consideration in respect of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) number of shares previously represented thereby. From and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing DateEffective Time, holders of Certificates (including, as applicable, book-entry shares) in exchange therefor shall cease to have any rights as stockholders of the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Company, except as provided herein or by applicable Law.
Appears in 1 contract
Sources: Merger Agreement (China Advanced Construction Materials Group, Inc)
Exchange Procedures. Commencing on (i) Subject to Section 2.7(c)(iii), promptly following the 35th day Effective Time, but in any event not more than five (5) Business Days after the date hereofClosing Date, Parent the Acquiror or Paying Agent, as applicable, shall cause the Exchange Agent to promptly mail or otherwise deliver to each holder of record of a certificate or certificates representing outstanding Target Capital Stock, whose shares of Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 2.6, (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (ia) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Paying Agent) in the form attached hereto as Exhibit D, and which letter of transmittal shall be in also require each holder of record of Target Capital Stock, as a condition to its right to receive the Merger Consideration pursuant to Section 2.6, to execute and deliver with such form letter of transmittal (1) a release of the Target and have its affiliates, (2) an indemnification agreement indemnifying the Securityholders’ Agent, and (3) a power of attorney (the “Letter of Transmittal”); (b) such other provisions customary documents as Parent and the Company may reasonably specify) be required pursuant to such instructions; and (iic) instructions for use in effecting the surrender of the Certificates certificate or certificates that represent outstanding shares of Target Capital Stock (the “Certificates”, and together with items (a), (b) and (c), the “Securityholder Documents”) in exchange for the cash payable pursuant to such holder’s respective portion of the Merger Consideration as described in Section 2.07(c2.6(a) or 2.10and Section 2.6(c), as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinrespectively. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by Acquiror, together with such letter Letter of transmittalTransmittal and other documents, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor therefore the Cash Merger Consideration (as described in Section 2.6. The Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Capital Stock will be paid in immediately available funds) which such holder has deemed from and after the Effective Time, for all corporate purposes other than the payment of dividends, to evidence the right to receive pursuant the portion of the Merger Consideration which shall be issued for such Target Capital Stock.
(ii) Subject to Section 2.7(c)(iii), promptly following the Effective Time, the Acquiror or Paying Agent, as applicable, shall mail or otherwise deliver to each holder of a Target Warrant a Warrant Acknowledgment Form and instructions to complete and return such form(s) in exchange for such holder’s respective portion of the Merger Consideration payable at Closing as described under Section 2.6(b). Promptly after the Effective Time, Acquiror or the Surviving Corporation shall cause the Paying Agent to make the payments in respect of the Target Warrant to which the holder thereof is entitled as provided in Section 2.6(b) provided, however, that any such payment shall be conditioned upon such holder’s submission to the provisions Paying Agent of Section 2.07(ca properly executed Warrant Acknowledgement Form.
(iii) (provided To the extent that a holder of Target Capital Stock Certificates and/or a Target Warrant has properly executed and delivered to Acquiror or the Exchange Paying Agent at the appropriate Securityholder Documents and Target Warrant Acknowledgment Form, as applicable, then on the Closing Date, Acquiror shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (pay or cause to be paid to each such holder at Closing the Merger Consideration payable to such holder in immediately available funds) promptly (but no earlier than the seventh day after accordance with this Section 2, in accordance with the Closing Date) in exchange therefor Payment Schedule. With respect to any payments payable to Securityholders that are current or former employees of Target or any of its Subsidiaries under this Section 2, Acquiror shall have the consideration which option to make such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)payments through Target’s payroll systems.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day As soon as reasonably practicable after the date hereof------------------- Effective Time, Parent the Buyer shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Common Stock (the "Option Certificates" and, collectively together other than Certificates which represented shares to be cancelled in accordance with the Stock Certificates, the "Certificates"Section 2.1(b)) from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other customary provisions as Parent and the Company Buyer may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinMerger Consideration. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by the Buyer, together with such letter of transmittal, duly executed, (x) and such other documents as may reasonably be required by the Exchange Agent, the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (subject to any taxes required to be paid in immediately available fundswithheld) which such holder has the right to receive Merger Consideration payable pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 2.1(c), and the Stock Certificate so surrendered shall immediately be canceledcancelled. 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 payable pursuant to Section 2.1(c) may be paid to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate is presented to the Exchange Agent, accompanied by all documents required to evidence and (y) the holder of effect such Option transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.2, each Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day deemed at any time after the Closing Date) in exchange therefor the consideration which such holder has Effective Time to represent only the right to receive upon such surrender the Merger Consideration payable pursuant to Section 2.10 hereof (which shall include the interest payment specified in 2.1(c) as contemplated by this Section 2.10)2.2.
Appears in 1 contract
Sources: Merger Agreement (Switchboard Inc)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after Following the Effective Time, Parent or the Payment Agent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each Shareholder at the address set forth opposite each such person’s name on the Spreadsheet (as defined below). After receipt of such letter of transmittal and any other customary documents that Parent or the Payment Agent may reasonably require in order to effect the exchange (the “Exchange Documents”), the Shareholders will surrender the certificates representing their shares of Eligible Stock (the “Company Certificates”) to the Payment Agent for cancellation together with duly completed and validly executed Exchange Documents. Until so surrendered, each Company Certificate outstanding after the Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the portion of the Aggregate Consideration Amount provided for in Section 2.6(a). No portion of the Aggregate Consideration Amount owed hereunder will be paid to the holder of any unsurrendered Company Certificate with respect to shares of Eligible Stock formerly represented thereby until the holder of record of a such Company Certificate who has not previously requested shall surrender such documents from Company Certificate and the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinDocuments pursuant hereto. Upon surrender of a Stock Company Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Payment Agent, or such other agent or agents as may be appointed by Parent, together with such letter of transmittalExchange Documents, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) subject to the terms hereof, the holder of such Stock Company Certificate shall be entitled to receive promptly from the Payment Agent in exchange therefor the Cash Consideration (cash payment to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be is entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 2.6(a) hereof (which shall include less such holder’s respective portion of the interest payment specified Total Escrow Amount to be placed in escrow pursuant to Section 2.102.6(a)(ii) hereof).
Appears in 1 contract
Sources: Merger Agreement (Shanda Games LTD)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (but in no event later than five (5) business days after the Effective Time), the Parent shall cause the Exchange Agent to promptly deliver deliver, as applicable, to each holder of record of of: (i) a certificate or certificates representing which immediately prior to the Effective Time evidenced outstanding shares of Common Stock Company Capital Stock; or (the "Stock Certificates"ii) and to each holder of record of a certificate or an instrument which immediately prior to the Effective Time represented any outstanding Company Options evidenced an Eligible Derivative Security (such certificates and instruments collectively referred to herein as the "Option Certificates" and“Instruments”), collectively whose securities were converted into the right to receive the number of Merger Shares to which such holder is entitled pursuant to Section 1.7 hereof, together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request any cash to be paid in lieu of fractional shares pursuant to Section 1.10 hereof: (iA) a letter of transmittal in the form attached as Exhibit F-1 hereto (which shall specify specifies, among other things, that delivery shall be effected, and risk of loss and title to the Certificates Instruments shall pass, only at or following the Effective Time and upon proper delivery of the Certificates Instruments to the Exchange Agent Agent) or in the case of any holder of an Eligible Derivative Security, a letter agreement in the form attached as Exhibit F-2 hereto (each such letter of transmittal and which shall be in such form and have such other provisions letter agreement referred to herein as Parent and the Company may reasonably specify) a “Letter of Transmittal”); and (iiB) instructions for effecting to effect the surrender of the Certificates Instruments in exchange for the cash payable number of Merger Shares to which such holder is entitled pursuant to Section 2.07(c) or 2.101.7 hereof, as the case may be, together with respect any cash to the be paid in lieu of fractional shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect pursuant to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinSection 1.10 hereof. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, an Instrument for cancellation to the Exchange Agent, together with such letter the appropriate Letter of transmittalTransmittal duly completed and validly executed in accordance with the instructions thereto, duly executed, (x) the a holder of such Stock Certificate Instruments shall be entitled to receive promptly in exchange therefor the Cash Consideration (number of Merger Shares to which such holder is entitled pursuant to Section 1.7 hereof, together with any cash to be paid in immediately available funds) lieu of fractional shares pursuant to Section 1.10 hereof, and the Instruments so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Instrument that, prior to the Effective Time, evidenced shares of Company Capital Stock or an Eligible Derivative Security will be deemed, from and after the Effective Time, for all corporate purposes, other than the payment of dividends or other distributions, to evidence the ownership of the number of Merger Shares to which such holder has the right to receive is entitled pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled1.7 hereof, and (y) the holder of such Option Certificate shall be entitled to receive (together with any cash to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive lieu of fractional shares pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)1.10 hereof.
Appears in 1 contract
Sources: Merger Agreement (Hologic Inc)
Exchange Procedures. Commencing on (a) Subject to Section 2.4(c), the 35th day after Shareholder Representative shall act as paying agent in effecting the exchange of cash for certificates which, immediately prior to the Effective Time, represent shares of Company Stock (“Certificates”) entitled to payment pursuant to Section 1.5. In furtherance thereof, the Shareholder Representative agrees to use commercially reasonable efforts from the date hereofof this Agreement to the Closing Date to secure (i) all Certificates entitled to payment pursuant to Section 1.5 and (ii) the name, current address and taxpayer identification number of each holder of any Certificate. In the event the Shareholder Representative is not able to secure substantially all Certificates from the holders thereof prior to the Closing Date (together with the current address and taxpayer identification number of such holders), the Shareholder Representative and Parent agree to negotiate in good faith toward the execution of a mutually acceptable paying agent agreement containing ordinary and customary terms. Nonetheless, at the Effective Time, Parent shall cause deliver the Exchange Agent Closing Merger Consideration to promptly deliver the Shareholder Representative in accordance with Section 2.3. Subject to the Shareholder Representative’s receipt of the Closing Merger Consideration in accordance with the immediately preceding sentence, the Shareholder Representative shall pay to each holder Shareholder, upon surrender to the Shareholder Representative of record (a) such Shareholder’s Certificate(s), duly endorsed in blank or accompanied by duly executed stock powers, representing the number of a certificate or certificates representing outstanding shares of Common each class of Company Stock held by such Shareholder and (b) a letter of transmittal, in form and substance acceptable to the "Shareholder Representative, duly executed by or on behalf of such Shareholder, the amount of cash to which such Shareholder is entitled under Section 1.5 and this Article 2. Surrendered Certificates shall forthwith be canceled. After the Effective Time, the holders of Certificates evidencing ownership of shares of Company Stock Certificates") and to each holder of record of a certificate or instrument which outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Stock, except as otherwise provided for herein or by applicable law. Until so surrendered and exchanged, each such Certificate shall represent solely the right to receive the portion of the Closing Merger Consideration and any additional Merger Consideration payable pursuant to this Agreement attributable to such share of Company Stock formerly represented by such Certificate (subject to Section 2.4(d)), except with respect to rights applicable to Dissenting Shares, and the Surviving Corporation shall not be required to pay the holder thereof the cash to which such holder would otherwise have been entitled. Notwithstanding the foregoing, if any outstanding Company Options (such Certificate shall have been lost, stolen or destroyed, then, upon the "Option Certificates" making of an affidavit of such fact by the Person claiming such Certificate to be lost, stolen or destroyed and, collectively together with if required by Parent, upon the Stock Certificatesposting by such Person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against Parent, the "Certificates") from whom Surviving Corporation or the Exchange Agent receives Shareholder Representative with respect to such Certificate (provided that, if such Person is a written request (i) a letter of transmittal (which shall specify that delivery financial institution or other institutional investor, its own agreement shall be effectedsatisfactory), and risk of loss and title to the Certificates Shareholder Representative shall passissue, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for such lost, stolen or destroyed Certificate, the cash portion of the Closing Merger Consideration and any additional Merger Consideration payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect this Agreement attributable to the shares such share of Common Company Stock or Company Options formerly represented thereby. The letter by such Certificate.
(b) Payment of transmittal with respect the Merger Consideration shall be deemed to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates been paid in full satisfaction of either with respect all rights pertaining to the Company OptionsStock and theretofore represented by such Certificates. As soon 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 the Company Stock that was outstanding immediately prior to the Effective Time. If, after the Effective Time, valid Certificates are presented to the Surviving Corporation or the Shareholder Representative for any reason, they shall be canceled and exchanged as reasonably practicable provided in this Section 2.4.
(and in c) At any event not later than three time following the expiration of one hundred twenty (3120) Business Days) days after the Effective Time, Parent shall cause be entitled to require the Exchange Agent Shareholder Representative to mail a letter of transmittal and deliver to the instructions described above to each holder of record of a Certificate who has Surviving Corporation, and, whether or not previously requested such documents from so required by Parent, the Exchange Agent. Each holder of a Certificate Shareholder Representative shall be entitled to surrender such Certificate deliver to the Exchange Agent at Surviving Corporation, all (but not less than all) of the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, Closing Merger Consideration that had been delivered to the Exchange AgentShareholder Representative and that has not been disbursed to holders of Certificates; thereafter, together with the Shareholder Representative shall have no further obligations under this Section 2.4 and such letter of transmittal, duly executed, (x) the holder of such Stock Certificate holders shall be entitled to receive promptly look solely to Parent and the Surviving Corporation (subject to any applicable abandoned property, escheat or similar Law), 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, none of Parent, the Merger Sub, the Surviving Corporation or the Shareholder Representative shall be liable to any Person in exchange therefor respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(d) Notwithstanding any implication to the Cash contrary contained in this Agreement, prior to delivery of any Closing Merger Consideration (to the Shareholder Representative, Parent shall, or shall cause the Surviving Corporation to, deduct and withhold from the Closing Merger Consideration otherwise payable to any holder of Certificates pursuant to this Agreement such amounts as are required to be paid in immediately available funds) which such holder has the right to receive pursuant deducted or withheld with respect to the provisions making of Section 2.07(c) (provided such payment under the Code or any applicable Law; it being agreed by the parties hereto that Stock Certificates delivered the Shareholder Representative, as paying agent for Parent and the Surviving Corporation, shall have no obligation to make any such deductions or withholdings and shall have no liability with respect thereto. Parent shall properly and timely pay to the Exchange Agent at proper Governmental Authority any amounts so deducted or withheld. To the Closing extent that amounts are so deducted or withheld, such amounts shall be treated for all purposes of this Agreement as having been paid at to the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of Person to whom such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)amounts would otherwise have been paid.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
Exchange Procedures. Commencing on At least ten (10) business days prior to the 35th day after Effective Time, the date hereof, Parent Surviving Corporation shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") representing Company Shares and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options Series B Option Agreement (the "Option Certificates" and, collectively together with the Stock Certificates, the "CertificatesAgreements") from whom whose shares or options, as the Exchange Agent receives a written request (icase may be, are to be converted into the right to receive the Merger Consideration pursuant to Section 1.5(a)(i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Option Agreements, as the case may be, shall pass, only at or following the Effective Time and upon delivery receipt of the Certificates to or Option Agreements, as the case may be, by the Exchange Agent Agent, and which shall be in such form and have such other provisions as Parent Buyer, the Company and the Company Exchange Agent may reasonably specify) ), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10Option Agreements, as the case may be, with respect to in exchange for the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinMerger Consideration. Upon surrender of a Stock Certificate or Option CertificateAgreement, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate or Option Agreement, as the case may be, shall be entitled to receive promptly in exchange therefor the Cash Merger Consideration (to be paid in immediately available funds) which such holder has upon the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) Effective Time and the Stock Certificate or Option Agreement, as the case may be, so surrendered shall immediately forthwith be canceledcancelled. Until so surrendered, and (y) each outstanding Certificate or Option Agreement, as the holder of such Option Certificate case may be, that, prior to the Effective Time, represented Company Shares or Series B Options, as the case may be, shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier deemed from and after the Effective Time, for all corporate purposes, other than the seventh day after payment of dividends, to evidence the Closing Date) in exchange therefor ownership of the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Merger Consideration.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day (a) As soon as reasonably practicable after the date hereofEffective Time (but in no event later than five (5) days following the Effective Time), Parent the Surviving Corporation shall cause the Exchange Agent to promptly deliver mail (i) to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Capital Stock (the "Option “Certificates" and, collectively together with the Stock Certificates, the "Certificates"”) from whom the Exchange Agent receives a written request (iA) a letter of transmittal (transmittal, in customary form, which shall specify that delivery shall be effectedeffective, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent Agent, and the Company may reasonably specify) holders are agreeing to appoint the Stockholder Representative upon the terms set forth in Section 10.5 of this Agreement, and (iiB) instructions for effecting the surrender of the such Certificates in exchange for a portion of the cash payable pursuant Aggregate Estimated Merger Consideration, and (ii) to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail each Optionholder a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time transmittal, in accordance with the procedures described hereincustomary form. Upon surrender of a Stock Certificate and/or a letter of transmittal (or Option Certificate, as the case may be, other documentation in compliance with Section 3.11 hereof) to the Exchange Agent, Agent together with such letter of transmittal, duly executedexecuted and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, (xi) the holder of a stockholder delivering such Stock Certificate documents shall be entitled to receive promptly in exchange therefor (A) its respective portion of the Cash Aggregate Estimated Merger Consideration, less the portion of the Aggregate Estimated Merger Consideration (allocable to be paid such stockholder that has been deposited in immediately available funds) which such holder has the right to receive General Escrow Fund and the Working Capital Escrow Fund pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 10.2 and the Stock Certificate so surrendered shall immediately be canceledSection 10.3, respectively, as applicable, and (yB) the holder cash in lieu of fractional shares of Parent Common Stock pursuant to Section 3.6, and (ii) an Optionholder delivering such Option Certificate documents shall be entitled to receive in exchange therefor its respective portion of the Aggregate Estimated Cash Consideration. No later than five (5) Business Days prior to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date, Parent shall deliver the form of letter of transmittal to the Company and the Stockholder Representative and prior to the Closing shall make such changes to the form as either shall reasonably request. The final form of letter of transmittal shall be in a form reasonably acceptable to the Company and the Stockholder Representative. If requested by the Stockholder Representative, the Surviving Corporation shall promptly provide the Stockholder Representative, at the expense of the Stockholder Representative, with copies of the executed letters of transmittal.
(b) Except as provided in exchange therefor Section 3.2(f)(iv), no interest will be paid or will accrue on any Aggregate Estimated Merger Consideration and any other amounts payable under this Article III. All payments of the consideration which such holder has Aggregate Estimated Merger Consideration and any other amounts payable under this Article III made by the right Exchange Agent shall be made by wire transfer or check and delivered in person or by mail to receive pursuant to Section 2.10 hereof (which shall include the interest payment address specified in Section 2.10)the applicable letter of transmittal.
(c) In the event of a transfer of ownership of Company Capital Stock prior to the Effective Time which is not registered in the transfer records of the Company, the Aggregate Estimated Merger Consideration and any other amounts payable under this Article III shall be payable to such transferee if the Certificate representing such shares of Company Capital Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid, each in the sole and reasonable discretion of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Knot Inc)
Exchange Procedures. Commencing on the 35th day As soon as practicable after the date hereofEffective Time ------------------- (but in any event within ten business days following the Effective Time), Parent shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Capital Stock and which shares were converted into the "Option Certificates" andright to receive the applicable consideration set forth in Section 1.6 hereof, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specifyAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to applicable consideration set forth in Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein1.6. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor such holder's portion of the Cash Merger Consideration (to be paid as set forth in immediately available funds) which Section 1.6 hereof less the portion of the Escrow Amount contributed on behalf of such holder has and the Certificate so surrendered shall forthwith be canceled. As soon as practicable after the Effective Time, and subject to and in accordance with the provisions of Article VII hereof, Parent shall deposit the Escrow Amount with the Escrow Agent (as defined in Article VII hereof). The Escrow Amount so deposited with the Escrow Agent shall be available to compensate Parent as provided in Article VII hereof. From the Closing and until so surrendered, each outstanding Certificate that, prior to the Effective Time, represented shares of Company Capital Stock will be deemed from and after the Effective Time, for all corporate purposes, to represent solely the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the applicable consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified set forth in Section 2.10)1.6 hereof.
Appears in 1 contract
Sources: Merger Agreement (Autodesk Inc)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time (and in any event within five (5) Business Days thereafter), Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of Shares represented by a certificate Certificate (other than holders of Excluded Shares) or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request Uncertificated Shares (i) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.2(e)) or Uncertificated Shares to the Exchange Agent and which shall Agent, such letter of transmittal to be in such form and have such other provisions as Parent and the Company may reasonably specify) agree, and (ii) instructions for effecting surrendering the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 3.2(e)) or Uncertificated Shares (including instructions for sending an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request)) to the Exchange Agent. Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 3.2(e)) to the Exchange Agent in accordance with the terms of such letter of transmittal or with respect to Uncertificated Shares receipt of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request) by the Exchange Agent, the holder of such Certificate or Uncertificated Share shall be entitled to receive in exchange therefor an amount in cash and CVRs pursuant to Section 3.1(a)(i), less any required Tax withholdings as provided in Section 3.2(f). The Certificate or Uncertificated Share so surrendered shall forthwith be cancelled. Until due surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10Uncertificated Share, as the case may beeach Certificate and Uncertificated Share shall be deemed, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (from and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause to represent only the Exchange Agent right to mail a letter of transmittal receive cash and CVRs pursuant to Section 3.1(a)(i). In the instructions described above to each holder of record event of a Certificate who has transfer of ownership of Shares that is not previously requested such documents from registered in the Exchange Agent. Each holder transfer records of a Certificate shall the Company, the applicable portion of Merger Consideration to be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon exchanged upon due surrender of a Stock the Certificate or Option Certificate, as Uncertificated Share pursuant to Section 3.1(a) may be issued and paid to such transferee if the case may be, Certificate formerly representing such Shares is presented to the Exchange Agent, together with accompanied by all documents required to evidence and effect such letter transfer and the Person requesting such payment shall pay any transfer Taxes required by reason of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant transfer or establish to the provisions reasonable satisfaction of Section 2.07(c) (provided Parent that Stock Certificates delivered to the Exchange Agent at the Closing shall be such Taxes have been paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)or are not applicable.
Appears in 1 contract
Exchange Procedures. Commencing on At the 35th day after the date hereofEffective Time, Parent shall cause deposit with the Exchange Agent (as defined below) funds which are sufficient to pay the amounts required to be paid to the Stockholders pursuant to Section 1.7(a). At or promptly deliver after the Effective Time and in any event within five (5) business days after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, mail or cause to be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Outstanding Company Capital Stock (the "Stock Certificates") and certificates evidencing such shares being referred to each holder of record of herein as a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" “Certificate” and, collectively together with collectively, as “Certificates”), at the Stock Certificatesaddress set forth opposite each such holder’s name on the Payment Spreadsheet, the "Certificates") from whom the Exchange Agent receives a written request (i) a notice of merger, (ii) an information statement and (iii) a letter of transmittal in substantially the form attached hereto as Exhibit B (which shall be in compliance with Delaware Law and specify that delivery of the Merger Consideration shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to Continental Stock Transfer and Trust Company (the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the “Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein”)). Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, or such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly from the Exchange Agent in exchange therefor therefor, a cash payment equal to the Cash Merger Consideration (to be paid in immediately available funds) which such holder has is entitled pursuant to Section 1.7(a), less the amounts withheld and disbursed in accordance with such Section 1.7(a) and less the amount of cash to be deposited into the Escrow Fund on such holder’s behalf pursuant to Sections 1.7(a) and 1.8(b). Until so surrendered, each Certificate outstanding after the Effective Time will be deemed for all corporate purposes to evidence only the right to receive the Merger Consideration set forth in Section 1.7(a). Any portion of the Merger Consideration which remains undistributed to the Stockholders six months after the Effective Time shall be delivered to Parent upon demand, and any Stockholders that have not complied with this Section 1.8(a) at that time shall thereafter look only to Parent for payment of their claim for the Merger Consideration. Neither Parent nor the Surviving Corporation shall be liable to any Stockholder for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by Stockholders three (3) years after the provisions Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity (as defined in Section 2.07(c3.2(a)) (provided that Stock Certificates delivered shall become, to the Exchange Agent at extent permitted by applicable law, the Closing shall be paid at property of the Closing) Surviving Corporation, free and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder clear of such Option Certificate shall be any claims or interest of any person previously entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)thereto.
Appears in 1 contract
Sources: Merger Agreement (Ivillage Inc)
Exchange Procedures. Commencing on the 35th day (i) As soon as practicable (but not more than one (1) day) after the date hereofEffective Time, Parent the Company and the Surviving Company shall cause the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock Certificates that were subsequently converted into the right to receive the Actual Merger Consideration, as set forth in Section 1.4: (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (iA) a letter of transmittal (a “Letter of Transmittal”), the form and substance of which shall be reasonably agreed to by the Company and RG at least three (3) days prior to the Closing Date, which shall, among other things, specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon proper delivery of the Certificates to the Exchange Agent and which shall be Surviving Company (or an affidavit of loss in such form and have such other provisions lieu thereof, together with any bond or indemnity agreement, as Parent and the Company may reasonably specify) contemplated by Section 1.9(e); and (iiB) instructions for use in effecting the surrender of the Certificates in exchange for payment of the cash payable pursuant to Section 2.07(capplicable Actual Merger Consideration.
(ii) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentSurviving Company, together with such letter a Letter of transmittalTransmittal, duly executed, completed and validly executed (xA) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration applicable amount of (to be paid in 1) cash, by wire transfer of immediately available funds, and (2) which shares of Company Common Stock, in each case equal to the portion of the Actual Merger Consideration for each RG Unit represented by such holder has Certificate in accordance with the Merger Consideration Schedule and (B) the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on the Actual Merger Consideration payable upon surrender of the Certificates. Until surrendered as contemplated by this Section 1.9(a), each such Certificate shall be deemed at any time after the Effective Time to represent only the right to receive pursuant upon such surrender the applicable Actual Merger Consideration. Notwithstanding anything in this Section 1.9 to the provisions of Section 2.07(c) (provided contrary, RG Units that Stock Certificates delivered are in non-certificate book-entry form immediately prior to the Exchange Agent Effective Time will, at the Closing shall Effective Time, be deemed to be automatically surrendered for all purposes hereunder.
(iii) In the event of a valid transfer of ownership of RG Units prior to the Effective Time that is not registered in the transfer records of RG, the appropriate amount of the Actual Merger Consideration may be paid at to the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and applicable transferee if (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Datei) in exchange therefor the consideration which case of certificated RG Units, the Certificate representing such holder has RG Units is presented to the right Surviving Company properly endorsed or accompanied by appropriate unit power and otherwise in proper form for transfer and accompanied by all customary documents reasonably required by the Surviving Company to receive pursuant evidence and effect such transfer and to Section 2.10 hereof evidence that any applicable Taxes have been paid or (which shall include ii) in the interest payment specified in Section 2.10)case of non-certificate book-entry RG Units, a properly endorsed and appropriate unit power is presented to the Surviving Company and accompanied by all customary documents reasonably required by the Surviving Company to evidence and effect such transfer and to evidence that any applicable Taxes have been paid.
Appears in 1 contract
Sources: Merger Agreement (Joe's Jeans Inc.)
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofEffective Time, Parent the Surviving Corporation shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options Common Stock (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom ), whose shares were converted into the Exchange Agent receives a written request right to receive the Merger Consideration pursuant to Section 1.6, (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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Agent, and which shall contain a specific agreement on the part of the owner of such Certificates to be bound by the provisions of Sections 8.4 and 8.5 in form and substance acceptable to Shareholders' Agent, and which shall otherwise be in such form and have such other provisions not inconsistent with this Agreement as Parent and the Company may reasonably specify) and ), (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable Merger Consideration (without interest), and (iii) such other customary documents as may be required pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereininstructions. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittaltransmittal and other documents, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor (A) the Cash Merger Consideration (to be paid in immediately available funds) which such holder has is entitled pursuant to Sections 1.6(a) and 1.6(b) (without interest), (B) a certificate representing the number of whole shares of Parent Common Stock to which such holder is entitled pursuant to Section 1.6(a), (c) any dividends or other distributions to which such holder is entitled pursuant to Section 1.7(d), and (d) cash (without interest) in respect of fractional shares as provided in Section 1.6(f), and the Certificate so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Certificate will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, to evidence the ownership of the number of full shares of Parent Common Stock into which such shares of Company Common Stock shall have been so converted and the right to receive pursuant the Cash Merger Consideration to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive is entitled pursuant to Section 2.10 hereof 1.6(a) and 1.6(b) (which shall include without interest) and an amount in cash (without interest) in lieu of the interest payment specified issuance of any fractional shares in accordance with Section 2.101.6(f).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Virage Logic Corp)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause (a) Purchaser hereby designates its transfer agent to act as the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock hereunder (the "Exchange Agent"). Promptly after the Effective Time, Purchaser shall make available to the Exchange Agent for exchange in accordance with this Article I, through such reasonable procedures as the Purchaser and the Exchange Agent may adopt, certificates evidencing the shares of Purchaser Common Stock Certificates"issuable pursuant to Section 1.1(c)(i) and to each holder (ii) above in exchange for the shares of record of a certificate or instrument which Company Stock outstanding immediately prior to the Effective Time represented any outstanding Company Options less the number of shares of Purchaser Common Stock to be deposited into the Escrow Fund (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates"defined below) from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein1.4 below. Upon surrender of a stock certificate representing shares of Company Stock Certificate or Option (a "Certificate, as the case may be, ") for cancellation to the Exchange Agent in accordance with the Purchaser's and Exchange Agent's procedures, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor (A) the Cash Consideration number of shares represented by the surrendered Certificate, multiplied by (B) the applicable number of shares pursuant to Section 1.1(c). The Certificate so surrendered shall forthwith be paid in immediately available funds) which such holder has cancelled. Until surrendered as contemplated by this Section 1.2(a), each Certificate shall be deemed from and after the Effective Time to represent only the right to receive pursuant to upon such surrender the provisions of Section 2.07(c) (provided that Stock Certificates delivered to merger consideration described above for each share represented by the Exchange Agent at the Closing Certificate. In no event shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of any such Option surrendered Certificate shall be entitled to receive (interest on any merger consideration to be received in connection with the Merger. Neither the Exchange Agent nor the Purchaser shall be liable to a holder of Company Stock for any merger consideration paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Any payments under this Section 1.2 shall be subject to applicable tax withholding requirements.
(b) 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 Purchaser or its transfer agent, the posting by such person of a bond or other indemnification, in immediately available funds) promptly (but no earlier than such reasonable and customary amount as the seventh day after Purchaser or its transfer agent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Closing Date) Exchange Agent will issue in exchange therefor for such lost, stolen or destroyed Certificate the merger consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)described above.
Appears in 1 contract
Sources: Merger Agreement (Cree Inc)
Exchange Procedures. Commencing on the 35th day (i) Promptly (and in any event within five (5) Business Days) after the date hereofEffective Time, the Parent shall cause the Exchange Paying Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock Certificate (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (iA) a letter of transmittal (which shall specify in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.7(g)) to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) Paying Agent, and (iiB) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.7(g)) in exchange for the cash Merger Consideration payable pursuant (subject to Section 2.07(c2.10) or 2.10, as the case may be, with respect thereto. Upon surrender of a Certificate (or affidavit of loss in lieu thereof as provided in Section 2.7(g)) to the Paying Agent in accordance with the terms of such letter of transmittal, properly completed and duly executed, the holder of such Certificate shall (x) be promptly paid (subject to Section 2.10) in exchange therefor a cash amount in immediately available funds equal to (1) the number of shares of Company Common Stock or Company Options formerly represented thereby. The by such Certificate (or affidavit of loss in lieu thereof as provided in Section 2.7(g)) multiplied by (2) the Cash Consideration and (y) receive in exchange therefor one (1) CVR for each share of Company Common Stock represented by such Certificate in accordance with and subject to the terms of the CVR Agreement, and the Certificate so surrendered shall forthwith be cancelled.
(ii) Notwithstanding anything to the contrary in this Agreement, any holder of Uncertificated Shares shall not be required to deliver a Certificate or an executed letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Paying Agent to mail a letter of transmittal and receive the instructions described above Merger Consideration that such holder is entitled to receive pursuant to this Article II. In lieu thereof, each holder of record of a Certificate who has not previously requested one or more Uncertificated Shares shall upon receipt by the Paying Agent of an “agent’s message” in customary form with respect to any Uncertificated Share (or such documents from the Exchange Agent. Each holder other evidence, if any, of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, transfer as the case Paying Agent may be, to the Exchange Agent, together with such letter of transmittal, duly executed, reasonably request) (x) the holder of such Stock Certificate shall be entitled promptly paid (subject to receive promptly in exchange therefor Section 2.10) the Cash Consideration (to be paid in immediately available funds) which respect of such holder has the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, Uncertificated Share and (y) the holder receive one (1) CVR in respect of such Option Certificate Uncertificated Share in accordance with and subject to the terms of the CVR Agreement, and such Uncertificated Share shall forthwith be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)cancelled.
Appears in 1 contract
Sources: Merger Agreement (Epizyme, Inc.)
Exchange Procedures. Commencing on the 35th day As soon as practicable after the date hereofEffective Time, Parent Buyer shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Common Stock or an option agreement representing In-the-Money Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "CertificatesCERTIFICATES") from whom and which shares of Company Common Stock or In-the-Money Company Options are exchanged for and represent the Exchange Agent receives right to receive a written request portion of the Merger Consideration pursuant to Section 2.6, (i) 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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Paying Agent and which shall be in such form and have such other provisions as Parent and the Company Buyer may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable appropriate portion of the Merger Consideration pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein2.6. Upon surrender of a Stock Certificate for cancellation to Paying Agent or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Buyer, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (an amount to be paid in immediately available funds) which such holder has the right to receive is entitled pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) 2.6, and the Stock Certificate so surrendered shall immediately be canceled. Until surrendered, each outstanding Certificate that, prior to the Effective Time, represented Company Shares or In-the-Money Company Options will be deemed from and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor Effective Time to evidence the consideration which such holder has ownership of the right to receive pursuant to Section 2.10 hereof (which shall include portion of the interest payment specified Merger Consideration as provided in Section 2.10)2.6 without any interest thereon.
Appears in 1 contract
Sources: Merger Agreement (Nexland Inc)
Exchange Procedures. Commencing (i) Prior to or on the 35th day after Closing Date, the date hereof, Parent shall Company will cause the Exchange Agent to promptly deliver be mailed or otherwise delivered to each holder of record (based on the addresses set forth on the Spreadsheet) of a certificate or certificates representing outstanding shares of Common Stock (the "Stock “Certificates"”) and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding shares of Company Options (Capital Stock that are to be converted into the "Option Certificates" andright to receive a portion of the Purchase Price, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent Acquiror, and which shall be in such the form and have such other provisions attached hereto as Parent and Exhibit H (the Company may reasonably specify“Letter of Transmittal”)) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant consideration owing to Section 2.07(csuch Company Stockholder in respect thereof.
(ii) or 2.10, as the case may be, with respect Upon surrender of a Certificate for cancellation to the shares Acquiror or its designee, together with a properly completed and duly executed Letter of Common Stock or Company Options formerly represented Transmittal and any other documentation required thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims , (A) the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender paid by check or wire transfer of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available funds) which , at such holder has holder’s option, the right to receive pursuant to the provisions of Section 2.07(c) (provided cash amount that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.9 in respect of such Certificate and (B) such Certificate shall be cancelled. Until so surrendered, each Certificate will be deemed from and after the Effective Time, for all corporate purposes, to evidence the ownership of the right to the pro rata share of the Closing Payment into which such shares of Company Capital Stock shall include have been so converted pursuant to the interest payment specified terms of this Agreement and as reflected in Section 2.10)the Spreadsheet.
Appears in 1 contract
Sources: Merger Agreement (Proofpoint Inc)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (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 at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Company Certificate who has not previously requested that, immediately prior to the Effective Time, represented shares of Company Common Stock, a letter of transmittal to be used to effect the exchange of such documents from Company Certificate for the Merger Consideration payable in respect of the shares of Company Common Stock represented by such Company Certificate, along with instructions for using such letter of transmittal to effect such exchange. The letter of transmittal (or the instructions thereto) shall specify that delivery of any Company Certificate shall be effected, and risk of loss and title thereto shall pass, only upon delivery of such Company Certificate to the Exchange Agent. Each Such letter of transmittal shall require each holder of record of a Company Certificate to specify whether such holder of record is a citizen of the United States, within the meaning of Section 2 of the Shipping Act of 1916, as amended (46 U.S.C. Section 802), and shall be entitled to in such form and have such other provisions as Parent may reasonably specify.
(ii) Upon surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Company Certificate or Option Certificate, as the case may be, to the Exchange Agentfor cancellation, together with such a duly completed and executed letter of transmittaltransmittal and any other required documents (including, duly executedin the case of any Person constituting an “affiliate” of the Company for purposes of Rule 145(c) and (d) under the Securities Act (“Rule 145”), a written agreement from such Person as described in Section 5.9, if not theretofore delivered to Parent): (xA) the holder of such Stock Company Certificate shall be entitled to receive promptly in exchange therefor a Parent Certificate representing the Cash Consideration (to be paid in immediately available funds) which such holder has the right to receive pursuant to the provisions number of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceledwhole shares of Parent Common Stock, if any, and (y) cash portion of the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which Merger Consideration that such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified 2.4(c)(i), Section 2.4(c)(iv) and Section 2.4(c)(v), any cash in lieu of fractional shares of Parent Common Stock as provided in Section 2.102.6(e), and any unpaid dividends and distributions that such holder has the right to receive pursuant to Section 2.4(c)(i), Section 2.4(c)(iv) and Section 2.4(c)(v) (after giving effect to any required withholding of taxes); and (B) the Company Certificate so surrendered shall forthwith be cancelled. No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions, if any, payable to holders of Company Certificates.
(iii) In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, the Merger Consideration payable in respect of such shares of Company Common Stock (along with any cash in lieu of fractional shares and any unpaid dividends and distributions that such holder has the right to receive under this Agreement) may be issued or paid to a transferee if the Company Certificate representing such shares of Company Common Stock is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer, including such signature guarantees as Parent or the Exchange Agent may request, and to evidence that any applicable stock transfer taxes have been paid.
(iv) Until surrendered as contemplated by this Section 2.6(b), each Company Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon surrender of a Company Certificate and execution of such other documents as the Exchange Agent may require, the Merger Consideration payable in respect of the shares of Company Common Stock represented by such Company Certificate as provided in Section 2.4(c)(i), Section 2.4(c)(iv) and Section 2.4(c)(v) (along with any cash in lieu of fractional shares and any unpaid dividends and distributions).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Todco)
Exchange Procedures. Commencing on the 35th day after the date hereof, Parent shall cause the Exchange Agent to promptly deliver to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) The Company shall prepare and mail, or cause to be prepared and mailed, a letter of transmittal substantially in the form attached hereto as Exhibit F (which shall specify that delivery shall be effected, and risk the “Letter of loss and title Transmittal”) to each Stockholder. At or prior to the Certificates shall passClosing, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company (A) each Stockholder may reasonably specify) and (ii) instructions for effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As its certificates and/or agreements representing the Company Common Stock (other than the Contributed Shares) (collectively the “Exchange Certificates”), representing the number of shares of Company Common Stock held by such Stockholder, together with a duly executed Letter of Transmittal and (B) if so surrendered, Paying Agent shall, as soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time or, if surrendered after the Effective Time, Parent shall cause the Exchange Agent date of surrender, pay to mail such Stockholder the amount of cash to which it is entitled under this Article II. In the event a letter of transmittal and the instructions described above to each holder of record of a Certificate who has Stockholder does not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate deliver to the Exchange Agent Company a Letter of Transmittal at or prior to Closing, such failure shall not alter, limit or delay the Effective Time in accordance with Closing or the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, to the Exchange Agent, together with such letter of transmittal, duly executed, (x) the holder conversion of such Company Common Stock Certificate or the vesting of Options as provided for in Section 2.3 and Section 2.4, but such Stockholder shall not be entitled to receive promptly the payments contemplated by this Article II unless and until such Stockholder surrenders the Exchange Certificates (or an affidavit of lost, stolen or destroyed certificate in exchange therefor the Cash Consideration form attached to the Letter of Transmittal) and duly executed Letter of Transmittal to the Company. After the Effective Time, the Paying Agent shall act as agent for payment of the Closing Date Payment upon surrender of the Exchange Certificates to all Stockholders who have not so surrendered their Exchange Certificates on the Closing Date.
(to ii) Surrendered Exchange Certificates shall forthwith be paid in immediately available funds) which canceled. Until so surrendered and exchanged, each such holder has Exchange Certificate shall represent solely the right to receive pursuant to the provisions of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall Merger Consideration. No interest will be paid at or will accrue on the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder cash payable upon surrender of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)any Exchange Certificate.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day No later than five (5) days after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver shall mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options Shares which were converted into the right to receive payment pursuant to Section 1.6 (the "Option a “Certificate” or “Certificates" and”), collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i) a letter of transmittal (which shall specify that delivery shall be effectedtransmittal, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinpayment. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange Agent, Agent together with such letter of transmittal, duly executed, (x) the holder of such Stock Certificate shall be entitled to receive promptly the cash payment calculated pursuant to Section 1.6 in exchange therefor and the Cash Consideration (Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares which is not registered in the transfer records of the Company, payment may be made to a transferee if the Certificate representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. 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 paid lost, stolen or destroyed and the posting by such person of a bond in immediately available funds) which such holder has amount as the Acquiror may reasonably direct as indemnity against any claim that may be made against it or the Exchange Agent with respect to such Certificate, the Exchange Agent will make payment in an amount based on the number of Shares represented by such lost, stolen or destroyed Certificate. Until surrendered as contemplated by this Section 1.8, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive pursuant upon such surrender the cash payment amount appropriate to the provisions number of Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of Shares represented by such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)Certificate.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day (i) As soon as reasonably practicable after the date hereofEffective Time, Parent shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time ------------ represented outstanding shares of Company Capital Stock, whose shares were converted into shares of Parent Common Stock (and cash in lieu of fractional shares, less any outstanding Company Options amount required to be withheld from such cash under foreign, federal, state or local tax laws), (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request (i1) 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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent from the shareholders of the Company, and which shall be in such form (duly and properly executed as may be required by Exchange Agent) and have such other provisions as Parent and the Company may reasonably specify) ), and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) certificates (or 2.10, as book entries in the case may be, with respect to the of shares that have not yet vested) representing shares of Parent Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and cash in lieu of fractional shares, less any event not later than three amount required to be withheld from such cash under foreign, federal, state or local tax laws).
(3ii) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record Upon surrender of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (xA) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate (or a book entry in the Cash Consideration (to be paid case of shares that have not yet vested in immediately available fundsfull) which such holder has representing the right to receive pursuant number of whole shares of Parent Common Stock equal to the provisions product of Section 2.07(c(i) the number of shares of Company Capital Stock represented by such Certificate multiplied by (provided that Stock Certificates delivered to ii) the Exchange Agent at the Closing shall be paid at the ClosingRatio, (B) and the Stock Certificate so surrendered shall immediately be canceledif applicable, and (y) the holder payment in lieu of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration fractional shares which such holder has the right to receive pursuant to Section 2.10 hereof 1.6(g), and (C) the Certificate so surrendered shall forthwith be canceled.
(iii) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holder thereof claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issue or cause to be issued to such Person in exchange for such lost, stolen or destroyed Certificate, a new certificate into which the shares of such Person's Company Capital Stock that are converted at the Effective Time and/or, if applicable, deliver or cause to be delivered to such Person a check in respect of any fractional share interests or dividends or distributions, which such Person shall include be entitled to receive pursuant to Section 1.6(g), excluding any payment obligations which may have otherwise accrued prior to the interest payment specified Effective Time. When authorizing such issuance in Section 2.10)exchange therefor, Parent and/or the Exchange Agent may, in its discretion and as a condition precedent to the issuance thereof, require the holder of such lost, stolen or destroyed Certificate to give Parent and/or the Exchange Agent a reasonable form of bond as indemnity, as it shall direct, against any claim that may be made against Parent or the Exchange Agent with respect to the Certificate alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Exchange Procedures. Commencing on the 35th day Promptly after the date hereofexecution of this Agreement, Parent the Company shall cause the Exchange Agent to promptly deliver be mailed to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any outstanding Company Options (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request which represent outstanding shares of Company Capital Stock, (i) the Information Statement contemplated by Section 5.1, which shall include an allocation of the cash and Parent Common Stock consideration to be paid in exchange for the shares of Company Capital Stock, together with a Stockholders' Letter Agreement appointing Keit▇ ▇▇▇▇▇▇ ▇▇▇ Robe▇▇ ▇. ▇▇▇▇▇▇ ▇▇ "Stockholders' Representatives", (ii) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only at or following the Effective Time and upon delivery of the Certificates to the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (iiiii) instructions for effecting the surrender of delivering the Certificates to Epst▇▇▇ ▇▇▇k▇▇ & ▇reen, P.C. ("EBG") to be held until the Effective Time and, at the Effective Time, surrendered in exchange for the cash payable and/or certificates representing shares of Parent Common Stock. Upon surrender, by EBG pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the shares of Common Stock or Company Options formerly represented thereby. The letter of transmittal with respect to Option Certificates shall contain language waiving any claims at the holders thereof may have against Parent Effective Time or by EBG or directly by the Company or any Affiliates holder of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) such Certificate if after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate for cancellation to the Exchange Agent at the Effective Time in accordance with the procedures described herein. Upon surrender of a Stock Certificate or Option Certificate, to such other agent or agents as the case may be, to the Exchange Agentbe appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) the holder of such Stock Certificate shall be entitled to receive promptly in exchange therefor a certificate representing the Cash Consideration number of whole shares of Parent Common Stock (less the number of shares of Parent Common Stock, if any, to be paid deposited in immediately available fundsthe Escrow Fund (as defined in Section 7.7 below) on such holder's behalf pursuant to Section 7.7 hereof), and any cash consideration to be received plus cash in lieu of fractional shares in accordance with Section 1.6, to which such holder has is entitled pursuant to Section 1.6, and the Certificate so surrendered shall forthwith be canceled. As soon as practicable after the Effective Time, and subject to and in accordance with the provisions of Article VII hereof, Parent shall cause to be distributed to the Escrow Agent a certificate or certificates representing that number of shares of Parent Common Stock equal to the Escrow Amount and Special Escrow Amount, if appropriate, which shall be registered in the name of the Escrow Agent. Such shares shall be beneficially owned by the holders on whose behalf such shares were deposited in the Escrow Fund and shall be available to compensate Parent as provided in Article VII. Until so surrendered, each outstanding Certificate that, prior to the Effective Time, represented shares of Company Capital Stock will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, to evidence the ownership of the number of full shares of Parent Common Stock into which such shares of Company Capital Stock shall have been so converted and the right to receive pursuant to the provisions applicable amount of cash consideration for such shares of Company Capital Stock and cash in lieu of the issuance of any fractional shares in accordance with Section 2.07(c) (provided that Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof (which shall include the interest payment specified in Section 2.10)1.6.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Exchange Procedures. Commencing on the 35th day Promptly, but in no event more than ten (10) business days, after the date hereofEffective Time, Parent shall cause EAST will instruct the Exchange Agent to promptly deliver mail to each holder of record of a certificate or certificates representing outstanding shares of Common Stock (the "Stock Certificates") and to each holder of record of a certificate or instrument which immediately prior to the Effective Time represented any evidenced outstanding Company Options shares of WEST Common Stock whose shares were converted into the right to receive shares of EAST Common Stock pursuant to Section 1.06 (the "Option Certificates" and, collectively together with the Stock Certificates, the "Certificates") from whom the Exchange Agent receives a written request ), (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 at or following the Effective Time and upon delivery receipt of the Certificates to by the Exchange Agent and which shall be in such form and have such other provisions as Parent and the Company EAST may reasonably specify) and (ii) instructions for effecting to effect the surrender of the Certificates in exchange for the cash payable pursuant to Section 2.07(c) or 2.10, as the case may be, with respect to the certificates evidencing shares of EAST Common Stock or Company Options formerly represented thereby. The letter and cash in lieu of transmittal with respect to Option Certificates shall contain language waiving any claims the holders thereof may have against Parent or the Company or any Affiliates of either with respect to the Company Options. As soon as reasonably practicable (and in any event not later than three (3) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail a letter of transmittal and the instructions described above to each holder of record of a Certificate who has not previously requested such documents from the Exchange Agent. Each holder of a Certificate shall be entitled to surrender such Certificate to the Exchange Agent at the Effective Time in accordance with the procedures described hereinfractional shares. Upon surrender of a Stock Certificate or Option Certificate, as the case may be, for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by EAST, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, (x) and such other customary documents as may be required pursuant to such instructions, the holder of such Stock Certificate shall be entitled to promptly receive promptly in exchange therefor the Cash Consideration (to be paid in immediately available fundsA) which such holder has the right to receive pursuant to the provisions certificates evidencing that number of Section 2.07(c) (provided that whole shares of EAST Common Stock Certificates delivered to the Exchange Agent at the Closing shall be paid at the Closing) and the Stock Certificate so surrendered shall immediately be canceled, and (y) the holder of such Option Certificate shall be entitled to receive (to be paid in immediately available funds) promptly (but no earlier than the seventh day after the Closing Date) in exchange therefor the consideration which such holder has the right to receive pursuant to Section 2.10 hereof 1.06, (B) any dividends or other distributions to which such holder is entitled pursuant to Section 1.07(c), and (C) cash in lieu of fractional shares of EAST Common Stock to which such holder is entitled pursuant to Section 1.06(f) (the EAST Common Stock, dividends, distributions and the cash described in this clause (C) being, collectively, the "Merger Consideration"), and the Certificate so surrendered shall include forthwith be canceled. Until so surrendered, each outstanding Certificate that, prior to the interest Effective Time, represented shares of WEST Common Stock will be deemed from and after the Effective Time, for all corporate purposes, other than the payment specified of dividends, to evidence the ownership of the number of full shares of EAST Common Stock into which such shares of WEST Common Stock shall have been so converted and the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 2.101.06 and any dividends or distributions payable pursuant to Section 1.07(c).
Appears in 1 contract