Payment of Merger Consideration. (a) On the Closing Date, Buyer shall make (or cause to be made) the following payments: (i) to an account, in the name of a financial institution reasonably acceptable to the Company and the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to – (A) the Merger Consideration minus (B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9; (ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and (iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares. (b) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger Consideration, and such certificate shall, after such surrender, be marked as canceled. (c) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Preferred Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceled. (d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12. (e) If any consideration is to be paid to a person other than the person in whose name the certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition to such exchange that the person requesting such exchange shall deliver all documents required to evidence and effect such transfer, as well as such certificate, if applicable, and shall pay to the Surviving Corporation any transfer or other taxes required by reason of the payment of such consideration to a person other than that of the registered holder of the Share, or the certificate, as applicable, so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. If any certificate for Shares shall have been lost, stolen or destroyed, the Payment Agent shall pay such portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and (b) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificate. (f) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2. (g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.
Appears in 1 contract
Sources: Merger Agreement (PQ Systems INC)
Payment of Merger Consideration. The Merger Consideration shall be payable to the Company Shareholders as follows:
(a) On Immediately prior to the Closing DateClosing, Buyer the parties shall estimate the Total Company Value and determine the Merger Consideration based on that estimate (the "Estimated Merger Consideration").
(b) At the Effective Time, Parent shall make (available to a bank or cause to be made) the following payments:
(i) to an accounttrust company, in the name of a financial institution or such other paying agent designated by Parent and reasonably acceptable to the Company and for the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management benefit of the Company in connection with Shareholders (the Merger"Paying Agent"), and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares.
(b) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product sum of (i) the number of Shares evidenced by such certificate multiplied by Estimated Merger Consideration less (ii) (x) the Per Share amount of $500,000 to be retained by Parent to satisfy any reduction of the Merger ConsiderationConsideration pursuant to Section 4.3, above (the "Adjustment Retention"); and (y) the amount of $700,000 to be retained by Parent to satisfy any claims for indemnification pursuant to Article X, below (the "Indemnity Retention") (such certificate amount being hereinafter referred to as the "Merger Payment Fund"). The Merger Payment Fund shall be invested by the Paying Agent, as directed by the Surviving Corporation so long as such directions do not impair the rights of the Company Shareholders, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, commercial paper rated the highest quality by Moody's Investors' ▇▇▇▇▇▇▇s or Standard & Poor's Corporation, or certificates of deposit issued by or a "money market" account at a commercial bank having at least $200,000,000 of positive net worth; and any net earnings with respect thereto shall be paid to the Surviving Corporation as and when requested by the Surviving Corporation. The Paying Agent shall, after such surrenderpursuant to irrevocable instructions, be marked as canceled.
(c) From and make the payments provided for in Section 4.1 out of the Merger Payment Fund. At any time after the Effective Time, upon notice from the surrender Surviving Corporation that a shareholder has properly exercised and perfected his dissenter's rights under the DGCL, the Paying Agent shall promptly repay to the Surviving Corporation from the Merger Payment Agent Fund an amount equal to such Company Shareholder's Proportionate Share of each certificate representing Preferred Shares the Merger Consideration. The Merger Payment Fund shall not be used for any purpose other than as described herein. The Adjustment Retention and a duly executed Letter Indemnity Retention shall be paid to the Company Shareholders in accordance with the provisions of Transmittal related theretoSections 4.5 and 4.6, below. The right to receive the Adjustment Retention and Indemnity Retention is an integral part of the consideration in the Merger, and shall not be transferable or assignable. The Indemnity Retention shall be subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth a $200,000 reduction in the Letter event the Principal Shareholders and the Parent enter into a mutually acceptable resolution of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced various matters discovered by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceledParent during its initial due diligence investigation.
(dc) From and Within five (5) days after the Effective Time, the Paying Agent shall mail to each holder of each Plan Option which was outstanding and unexercised record as of the Effective Time of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Paying Agent) and (ii) instructions for use in effecting the surrender of the Company Certificates for payment therefor. Upon surrender of Company Certificates to the Paying Agent, together with such letter of transmittal duly executed and any other required documents, the holder of such Company Certificates shall be entitled to receive in exchange therefor an amount in cash equal such Company Shareholder's Proportionate Share of the Merger Consideration. Until so surrendered, such Company Certificates shall represent solely the right to receipt such Company Shareholder's Proportionate Share of the Merger Consideration with respect to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) Company Shares represented thereby. No interest shall be paid or accrue on the Merger Consideration payable upon surrender of the Company Certificates. If any consideration payment of the Merger Consideration is to be paid made to a person other than the person one in whose name the certificate representing Shares Company Certificate surrendered in exchange therefor is registered, it shall be a condition to of such exchange payment that the Company Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall deliver all documents required to evidence and effect such transfer, as well as such certificate, if applicable, and payment shall pay to the Surviving Corporation Paying Agent any applicable transfer or other taxes required by reason of the payment of such consideration to a person other than that of the registered holder of the Sharesimilar taxes, or the certificate, as applicable, so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that any such tax has been paid or is not applicable. If Notwithstanding the foregoing, neither the Paying Agent nor any certificate party hereto shall be liable to a holder of Shares for Shares shall have been lost, stolen or destroyed, the Payment Agent shall pay such any Merger Consideration delivered to a public official pursuant to applicable escheat law.
(d) Any portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact Payment Fund (including any interest thereon or earnings or profits with respect thereto) which remains unclaimed by the holder thereof and, if required by former shareholders of the Company six months after the Effective Time shall be delivered to the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and (b) in all other cases, an unsecured indemnity in customary form in favor upon demand of the Surviving Corporation, in each case against and any claim that may be made against the Surviving Corporation with respect to such certificate.
(f) At the close of business on the day of the Effective Time, the stock transfer books former shareholders of the Company shall be closed and thereafter there shall be no transfers look only to the Surviving Corporation for payment of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender their claim for the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2Company Shares.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.
Appears in 1 contract
Payment of Merger Consideration. (a) On At the Closing DateEffective Time, Buyer the Surviving Entity shall make (or cause to be made) the following payments:
deliver (i) to each Eligible Holder who has, as of the Effective Time, delivered a duly executed and completed Letter of Transmittal and has surrendered the applicable certificate(s) representing its shares of Class L Common Stock (A) if the Eligible Holder is an accountAccredited Investor, the Per L Share Merger Consideration or (B) if the Eligible Holder is not an Accredited Investor, cash equal to the value of the Per L Share Merger Consideration, as provided in Section 2.02(b), in respect of each share of Class L Common Stock represented by such certificate(s), in each case less any applicable Tax withholdings, and (ii) to each Eligible Holder who has, as of the name Effective Time, delivered a duly executed and completed Letter of a financial institution reasonably acceptable Transmittal and has surrendered the applicable certificate(s) representing its shares of Class A Common Stock (A) if the Eligible Holder is an Accredited Investor, the Per A Share Merger Consideration or (B) if the Eligible Holder is not an Accredited Investor, cash equal to the Company and value of the BuyerPer A Share Merger Consideration, which as provided in Section 2.02(c), in respect of each share of Class A Common Stock represented by such certificate(s), in each case less any applicable Tax withholdings. Any such cash to be paid to an Eligible Holder shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred Shares, be made by wire transfer of immediately available fundsfunds (or, at the request of an amount equal to –Eligible Holder, by check).
(Ab) The Surviving Entity shall deliver to each Eligible Holder who has not, as of the Merger Consideration minus
Effective Time, delivered a duly executed and completed Letter of Transmittal or surrendered the applicable certificate(s) representing its shares of Class L Common Stock or Class A Common Stock, (B) the sum of (1) the product of (yi) the Per L Share Merger Consideration or, if the Eligible Holder is not an Accredited Investor, cash equal to the value of the Per L Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyeras provided in Section 2.02(b), Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
each share of Class L Common Stock represented by such certificate(s) and (ii) the Per A Share Merger Consideration or, if the Eligible Holder is not an Accredited Investor, cash equal to the value of the Per A Share Merger Consideration, as provided in Section 2.02(c), in respect of each share of Class A Common Stock, in the case of each of clauses (i) and (ii), promptly following surrender of such certificate(s) (or a lost certificate affidavit and, if applicable, bond) and upon delivery of a duly executed and completed Letter of Transmittal, without interest and less any applicable Tax withholdings. Any such cash to be paid to an account designated in writing by the Company, Eligible Holder shall be made by wire transfer of immediately available fundsfunds (or, at the request of an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving CorporationEligible Holder, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares.
(b) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger Consideration, and such certificate shall, after such surrender, be marked as canceledcheck).
(c) From and after In the Effective Time, upon the surrender to the Payment Agent event of each certificate representing Preferred Shares and a duly executed Letter transfer of Transmittal related thereto, subject to Section 2.12, the holder ownership of such certificate shall be entitled to receive in exchange therefor by check any shares of Class L Common Stock or wire transfer (as selected by such holder and set forth Class A Common Stock that is not registered in the Letter transfer records of Transmittal) an amount in cash equal the Company, payment may be made with respect to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and shares to such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) If any consideration is to be paid to a person other than the person in whose name transferee if the certificate representing Shares surrendered in exchange therefor such shares is registeredpresented to the Company, it shall be a condition to such exchange that the person requesting such exchange shall deliver accompanied by all documents required to evidence and effect such transfertransfer and to evidence that any applicable stock transfer taxes have been paid. For the avoidance of doubt, as well as any such certificatetransferee that satisfies these requirements may be an Eligible Holder.
(d) Notwithstanding anything in this Agreement to the contrary, if applicableCompany Shares issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such shares (the “Appraisal Shares”) pursuant to, and shall pay to who complies in all respects with, the Surviving Corporation any transfer or other taxes required by reason provisions of Section 262 of the payment of such consideration DGCL (“Section 262”) shall not be converted into the right to a person other than that of receive the registered holder of the Share, Per L Share Merger Consideration or the certificatePer A Share Merger Consideration as provided in Section 2.02(b) or Section 2.02(c), as applicable, so surrenderedbut instead such holder shall be entitled to payment of the fair value of such shares in accordance with the provisions of Section 262. At the Effective Time, all Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Appraisal Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or a court of competent jurisdiction shall determine that such person shall establish holder is not entitled to the reasonable satisfaction relief provided by Section 262, then the right of such holder to be paid the Surviving Corporation that fair value of such tax has been paid or is not applicable. If any certificate for holder’s Appraisal Shares under Section 262 shall cease and each such Appraisal Share shall be deemed to have been lostconverted at the Effective Time into, stolen or destroyedand shall (i) have become, the Payment Agent shall pay such portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series Class L Common Stock, the right to receive the Per L Share Merger Consideration (or the applicable cash payment if such holder is not an Accredited Investor) as provided in Section 2.02(b), without interest and less any applicable Tax withholding, and (ii) have become, in the case of shares of Class A Common Stock immediately prior Stock, the right to receive the Per A Share Merger Consideration (or the applicable cash payment if such holder is not an Accredited Investor) as provided in Section 2.02(c), without interest and less any applicable Tax withholding. The Company shall serve prompt notice to Parent of any demands for appraisal of any Company Shares, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the posting Company shall not, without the prior written consent of bondParent (which shall not be unreasonably withheld, delayed or conditioned), make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.
(e) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the conversion of Company Shares pursuant to Section 2.02. Notwithstanding any other provision of this Agreement, each holder of Company Shares converted pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after taking into account all Company Shares exchanged by such holder) shall receive the aggregate number of shares due to such holder pursuant to the terms of this Agreement, rounded down to the nearest whole number; provided, that, notwithstanding the foregoing, each Eligible Holder (if any) that is an Accredited Investor and holds shares of Class A Common Stock who would have otherwise been entitled to receive less than one share of Parent Common Stock in respect of such Eligible Holder’s shares of Class A Common Stock (after taking into account all shares of Class A Common Stock exchanged by such holder) shall receive one share of Parent Common Stock in the aggregate in respect of such Eligible Holder’s shares of Class A Common Stock; provided further that (i) any such issuance of Parent Common Stock pursuant to the preceding proviso shall not increase the Aggregate Share Consideration and (ii) notwithstanding anything in this Agreement to the contrary, in such reasonable amount no event shall the number of shares of Parent Common Stock issuable by Parent pursuant to this Agreement exceed the 6,262,046 shares of Parent Common Stock set forth in the definition of Aggregate Share Consideration, as the Surviving Corporation may direct, and amount of such shares shall be adjusted in accordance with clauses (bb)-(f) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificatedefinition of Aggregate Share Consideration.
(f) At The shares of Parent Common Stock to be issued in the close of business on the day of the Effective Time, the stock transfer books of the Company Merger shall be closed characterized as “restricted securities” for purposes of Rule 144 under the Securities Act, and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing any such shares shall, until such time that such shares are not so restricted under the Securities Act, bear a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration legend identical or similar in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented effect to the Surviving Corporationfollowing legend (together with any other legend or legends required by applicable state securities Laws or otherwise, they shall be canceledif any): “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, delivered to the Payment Agent and exchanged for the applicable portion of the Merger ConsiderationSOLD OR OTHERWISE TRANSFERRED, as provided in this Article 2ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.”
Appears in 1 contract
Payment of Merger Consideration. (a) On the Closing Date, Buyer shall make (or cause to be made) the following payments:
(i) Upon surrender to an accountPaying ------------------------------- Agent of the certificate(s) representing GCSI Shares (other than Dissenting Shares), in the name of a financial institution reasonably acceptable Paying Agent shall pay to the Company GCSI Stockholder surrendering such certificate(s) a prorata share (based on the number of issued and outstanding GCSI Shares immediately prior to The Effective Time) of the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender sum of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
and (B) the sum estimated Capital Expenditures of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares.
(b) From and GCSI made after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Shares Agreement Date and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check on or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger Consideration, and such certificate shall, after such surrender, be marked as canceled.
(c) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Preferred Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time not to exceed $10,000,000.00, for each GCSI Share represented by the surrendered certificate(s), which amount shall be entitled to receive in exchange therefor an amount in cash equal to paid by Paying Agent within one (1) business day of its receipt of the Option Payment Amount for each such Optionsurrendered certificate(s) by bank check or other immediately available funds, less applicable withholding pursuant to Section 2.12.
and (eii) If any consideration is upon receipt of a disbursement notice signed by Buyer and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, anticipated to be paid to a person other not later than fifteen (15) days after the person in whose name Closing, the certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition to such exchange that the person requesting such exchange shall deliver all documents required to evidence and effect such transfer, as well as such certificate, if applicable, and Paying Agent shall pay to the Surviving Corporation any transfer or other taxes required by reason of the payment of such consideration to a person other than each GCSI Stockholder that of the registered holder of the Share, or the certificate, as applicable, so has previously surrendered, or subsequently surrenders, such person shall establish to certificate(s) (other than certificates representing Dissenting Shares) a prorata share (based on the reasonable satisfaction number of issued and outstanding GCSI Shares immediately prior To the Effective Time) of the Surviving Corporation that such tax has been estimated Incentive Payment, reduced by any overestimate, or increased by any underestimate, of Capital Expenditures of GCSI made after the Agreement Date and on or prior to The Effective Time, as reflected in said joint disbursement notice, for each GCSI Share represented by the surrendered certificate(s), which amount shall be paid or is not applicable. If any certificate for Shares shall have been lost, stolen or destroyed, the Payment by Paying Agent shall pay such portion within one (1) business day of receipt of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof andjoint disbursement notice or, if required by the Surviving Corporation, (a) in the case of Persons holding in excess a subsequently surrendered certificate, within one (1) business day of 1% its receipt of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and (b) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificate.
(f) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until subsequently surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2bank check or other immediately available funds.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.
Appears in 1 contract
Payment of Merger Consideration. (a) On At the Closing DateEffective Time, Buyer the Surviving Corporation shall make (or cause deliver to be madeeach Eligible Holder who has, prior to the date thereof, delivered a duly executed and completed letter of transmittal and has surrendered the applicable certificate(s) the following payments:
representing its Company Shares an aggregate amount in cash equal to (i) to an accountthe product of the number of Company Shares represented by such certificate(s) multiplied by the Per Share Merger Consideration, in the name of a financial institution reasonably acceptable to the Company and the Buyer, which shall act as payment agent (the “Payment Agent”ii) in effecting the surrender of certificates representing the Shares and the Preferred Sharesless any applicable income or employment tax withholding, by wire transfer of immediately available fundsfunds (or, at the request of an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the CompanyEligible Holder, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Sharescheck).
(b) From At or prior to the Closing, the Surviving Corporation and after the Paying Agent shall enter into a paying agent agreement (the “Paying Agent Agreement”), in a form reasonably agreed to by the parties hereto. At the Effective Time, upon the surrender Surviving Corporation shall deliver to the Payment Paying Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an aggregate amount in cash equal to the product of (i) the aggregate number of Company Shares evidenced (x) in respect of which a duly executed and completed letter of transmittal has not been received by such certificate the Company or whose certificates have not been surrendered to the Company, as of the Effective Time and (y) which are not Appraisal Shares or shares canceled pursuant to Section 2.03(d), multiplied by (ii) the Per Share Merger Consideration. Following the Effective Time, the Paying Agent shall deliver to each Eligible Holder who has not, as of the Effective Time, delivered a duly executed and completed letter of transmittal or surrendered the applicable certificate(s) representing its Company Shares an aggregate amount in cash equal to (i) the product of the number of Company Shares represented by such certificate(s) multiplied by the Per Share Merger Consideration, (ii) less any applicable income or employment tax withholding, by wire transfer of immediately available funds (or, at the request of an Eligible Holder, by check) immediately following surrender of certificate(s) evidencing such Company Shares (or a lost certificate shallaffidavit and, after such surrenderif applicable, be marked as canceledbond) and upon delivery of a duly executed and completed letter of transmittal.
(c) From and after In the Effective Time, upon the surrender to the Payment Agent event of each certificate representing Preferred a transfer of ownership of Company Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth that is not registered in the Letter transfer records of Transmittal) an amount in cash equal the Company, payment may be made with respect to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and shares to such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) If any consideration is to be paid to a person other than the person in whose name transferee if the certificate representing Shares surrendered in exchange therefor such shares is registeredpresented to the Company, it shall be a condition to such exchange that the person requesting such exchange shall deliver accompanied by all documents required to evidence and effect such transfer, as well as such certificate, if applicable, transfer and shall pay to the Surviving Corporation evidence that any applicable stock transfer taxes or other taxes required by reason of the payment as a result of such consideration payment to a person Person other than that of the registered holder of such Common Stock have been paid. For the Shareavoidance of doubt, or the certificate, as applicable, so surrendered, or any such person transferee that satisfies these requirements shall establish be an Eligible Holder.
(d) Notwithstanding anything in this Agreement to the reasonable satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. If any certificate for Shares shall have been lostcontrary, stolen or destroyed, the Payment Agent shall pay such portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the each Company Share issued and outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting Time that is held by any holder who is entitled to demand and properly demands appraisal of bond, in such reasonable amount as the Surviving Corporation may direct, and Company Share (b) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificate.
(f) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.an
Appears in 1 contract
Payment of Merger Consideration. (a) On the Closing Date, Buyer shall make (or cause to be made) the following payments:
(i) to an account, in the name of a financial institution reasonably acceptable to the The Company and the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Mergerwill promptly, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares.
(b) From and after any event not later than ten business days following the Effective Time, upon the surrender mail to the Payment Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such record of a certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger Considerationcertificates, and such certificate shall, after such surrender, be marked as canceled.
(c) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Preferred Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to represented outstanding shares of Company Common Stock (the Option Payment Amount for each such Option"Certificates"), less applicable withholding whose Shares were converted pursuant to Section 2.12.
2.1(a) into the right to receive the Merger Consideration, a check from the Company representing the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate. Each Certificate (eother than Certificates representing Dissenting Shares) If shall be deemed at any consideration is time after the Effective Time to be paid canceled and represent only the right to a person other than the person in whose name the certificate representing Shares surrendered in exchange therefor is registered, it shall be a condition to such exchange that the person requesting such exchange shall deliver all documents required to evidence and effect such transfer, as well as such certificate, if applicable, and shall pay to the Surviving Corporation any transfer or other taxes required by reason of the payment of such consideration to a person other than that of the registered holder of the Share, or the certificate, as applicable, so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. If any certificate for Shares shall have been lost, stolen or destroyed, the Payment Agent shall pay such portion of receive the Merger Consideration as may be required pursuant to contemplated by this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and Section 2.2.
(b) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificate.
(f) At the close of business on the day of After the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers on the stock transfer books of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Surviving Corporation of Shares which were outstanding immediately prior to the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2Time. If, after the Effective Time, certificates previously representing Dissenting Shares Certificates are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent canceled and exchanged for the applicable portion of the Merger Consideration, Consideration as provided in this Article 2II. Any former shareholders of the Company shall after the Effective Time, look only to the Surviving Corporation for payment of any Merger Consideration that may be payable upon surrender of any Certificates such shareholder holds, as determined pursuant to this Agreement, without any interest thereon.
(gc) On or prior to the Closing DateNone of MergerCo, the Company, the Surviving Corporation, or any other person shall be liable to any former holder of shares of Company Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(d) Any payment made pursuant to this Section 2.2 shall deliver be subject to Buyer and the Payment Agent a schedule setting forth the made net of applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached heretowithholding taxes.
Appears in 1 contract
Payment of Merger Consideration. (a) On the Closing Date, Buyer shall make (or cause to be made) the following payments:
(i) to an account, in the name of a financial institution reasonably acceptable to the Company and the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shares.
(b) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger Consideration, and such certificate shall, after such surrender, be marked as canceled.
(c) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Preferred Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceled.
(d) From and Immediately after the Effective Time, the Parent shall pay and deliver the Merger Consideration as follows:
(a) The Parent shall direct its transfer agent to issue, in the name of each Company Stockholder, the number of shares of Parent Common Stock to be issued to each such Company Stockholder pursuant to the terms of this Agreement (as such number of shares are reflected on a certificate signed by a duly authorized officer of the Company and delivered by the Company to the Parent at least three (3) Business Days before the Closing Date, which will set forth and be certified therein as true and accurate as of the Effective Time: (i) each Company Stockholder as of the Effective Time; (ii) the number of Company Shares held by each such Company Stockholder; and (iii) the number of shares of Parent Common Stock to be issued on conversion of the Company Shares held by each such Company Stockholder at Closing in accordance with the Company’s Organizational Documents and this Agreement (such certificate, the “Allocation Certificate”));
(b) The Parent shall deliver to its transfer agent for delivery to the Company Stockholders the aggregate amount of cash sufficient to pay for fractional shares of Parent Common Stock calculated pursuant to Section 2.6(d); and
(c) Promptly after the Effective Time, Parent and the Surviving Corporation shall cause to be mailed, or if appropriate transmitted electronically, by the Parent’s transfer agent, acting as exchange agent, to each Person who was, at the Effective Time, a holder of each Plan Option record of Company Shares entitled to receive the Merger Consideration pursuant to this Agreement a customary and reasonable form of letter of transmittal (which was outstanding shall specify that delivery shall be effected, and unexercised immediately prior risk of loss and title to any certificates evidencing such Company Shares (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Effective Time exchange agent (or effective affidavits of loss in lieu of such Certificates as set forth in below) and instructions for use in effecting the surrender of the Certificates and of any uncertificated Company Shares entitled to receive Merger Consideration (“Uncertificated Shares”) pursuant to such letter of transmittal). Upon surrender to the exchange agent of a Certificate, or upon receipt of by the exchange agent of such evidence, if any, of transfer as the exchange agent may reasonably request in the case of a book-entry transfer of Uncertificated Shares, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, the holder of such Certificate (or effective affidavits of loss in lieu of such Certificates as set forth below) and the holder of such Uncertificated Shares shall be entitled to promptly receive in exchange therefor an amount in cash equal to the Option Payment Amount Merger Consideration for each Company Share formerly evidenced by such OptionCertificate or Uncertificated Shares, less and such Certificate and transferred Uncertificated Shares so surrendered shall then be cancelled. The exchange agent will accept such Certificates and Uncertificated Shares upon compliance with such reasonable and customary terms and conditions as the exchange agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. Until so surrendered, outstanding Certificates and Uncertificated Shares will be deemed from and after the Effective Time to evidence only the right to receive the applicable withholding Merger Consideration, without interest thereon, payable in respect thereof pursuant to Section 2.12.
(e) this Agreement. If any consideration payment of the Merger Consideration is to be paid made to a person other than the person Person in whose name the certificate representing Shares surrendered in exchange therefor Certificate or Uncertificated Share is registeredregistered on the stock transfer books of the Company, it shall be a condition to such exchange of payment that the Certificate or Uncertificated Share so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such exchange payment shall deliver have paid all documents required to evidence transfer and effect such transfer, as well as such certificate, if applicable, and shall pay to the Surviving Corporation any transfer or other taxes similar Taxes required by reason of the payment of such consideration the Merger Consideration to a person other than that of the registered holder of the Share, Certificate or the certificate, as applicable, so surrendered, Uncertificated Share surrendered or such person shall establish have established to the reasonable satisfaction of the Surviving Corporation that such tax has Taxes either have been paid or is are not applicable. The Merger Consideration paid in accordance with this Agreement upon the surrender for exchange of Certificates and Uncertificated Shares shall be deemed to have been paid in full satisfaction of all rights pertaining to the Company Shares theretofore represented by such Certificates and Uncertificated Shares. If any certificate for Shares Certificate shall have been lost, stolen or destroyed, the Payment Agent shall pay such portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting by such person of bond, a bond in such reasonable and customary amount as the Surviving Corporation may direct, and (b) in all other cases, an unsecured require as indemnity in customary form in favor of the Surviving Corporation, in each case against any claim claims that may be made against the Surviving Corporation it with respect to such certificate.
(f) At the close of business on the day of the Effective TimeCertificate, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock exchange agent will issue in exchange for such lost, stolen or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender destroyed Certificate the Merger Consideration payable in respect of the Sharesthereof, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented pursuant to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.
Appears in 1 contract
Payment of Merger Consideration. (a) On the Closing Date, Buyer shall make (or cause to be made) the following payments:
(i) to an account, in the name of a financial institution reasonably acceptable At or prior to the Company and Closing, Purchaser will deliver to the BuyerPaying Agent, which shall act as for further payment agent (to the “Payment Agent”) Eligible Holders pursuant to the Paying Agent Agreement, cash in effecting the surrender of certificates representing the Shares and the Preferred Shares, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Closing Per Share Merger Consideration, multiplied by (zB) the total number of issued and outstanding Company Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution immediately prior to Buyer by management of the Company in connection with Effective Time (the Merger, and the number of Shares that are Dissenting Shares“Aggregate Closing Per Share Merger Consideration”), and (2ii) at the Effective Time, Purchaser shall fund the Company with cash sufficient to pay the aggregate Closing Option Payment Amount payable Merger Consideration in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Shareseach Vested Option.
(b) From and after Immediately following the Effective Time, upon the surrender Paying Agent shall deliver to the Payment Agent of each certificate representing Shares and Eligible Holder who has delivered a duly executed Letter and completed letter of Transmittal transmittal and indemnification agreement in the form attached hereto as Exhibit D hereto (each, a the “Letter of Transmittal”) related theretoand such other documents as may reasonably be required by the Paying Agent and has, subject to Section 2.122.05(g), surrendered the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittalapplicable certificate(s) representing its Company Shares, an aggregate amount in cash equal to the product of (i) the number of Company Shares evidenced represented by such certificate certificate(s), multiplied by (ii) the Closing Per Share Merger Consideration, and by wire transfer of immediately available funds to an account designated in such certificate shallEligible Holder’s Letter of Transmittal (or, after such surrenderat the request of an Eligible Holder, be marked as canceledby check).
(c) From and after In the Effective Time, upon the surrender to the Payment Agent event of each certificate representing Preferred a transfer of ownership of Company Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth that is not registered in the Letter transfer records of Transmittal) an amount in cash equal the Company, payment may be made with respect to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and shares to such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) If any consideration is to be paid to a person other than the person in whose name transferee if the certificate representing Shares surrendered in exchange therefor such shares is registeredpresented to the Company, it shall be a condition to such exchange that the person requesting such exchange shall deliver accompanied by all documents required to evidence and effect such transfertransfer and to evidence that any applicable stock transfer taxes have been paid.
(d) Notwithstanding anything to the contrary contained herein or otherwise, Company Shares issued and outstanding immediately prior to the Effective Time that are held by any holder who is entitled to demand and properly demands appraisal of such shares (the “Appraisal Shares”) pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (“Section 262”), shall not be converted into the right to receive the Closing Per Share Merger Consideration as well as provided in Section 2.02(b), but instead such certificateholder shall be entitled to payment of the fair value of such shares in accordance with the provisions of Section 262. At the Effective Time, all Appraisal Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Appraisal Shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if applicableany such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder’s Appraisal Shares under Section 262 shall cease and each such Appraisal Share shall be deemed to have been converted at the Effective Time into, and shall pay to the Surviving Corporation any transfer or other taxes required by reason of the payment of such consideration to a person other than that of the registered holder of the Share, or the certificate, as applicable, so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. If any certificate for Shares shall have been lost, stolen or destroyedbecome, the Payment Agent shall pay such portion of right to receive the Closing Per Share Merger Consideration as may be required pursuant provided in Section 2.02(b), without interest. The Company shall serve prompt notice to this Agreement Purchaser of any demands for appraisal of any Company Shares, and Purchaser shall have the right to participate in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the posting Company shall not, without the prior written consent of bondPurchaser (which shall not be unreasonably withheld, in conditioned or delayed), make any payment with respect to, or settle or offer to settle, any such reasonable amount as the Surviving Corporation may directdemands, and (b) in all other cases, an unsecured indemnity in customary form in favor or agree to do any of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificateforegoing.
(f) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Payment of Merger Consideration. (a) On Promptly after the Effective Time, but in each case, on the Closing Date, Buyer shall Parent will make (or cause to be made) the following payments:
(i) to an account, in the name of a financial institution reasonably acceptable the Exchange Agent, that is designated in writing by the Representative, by wire transfer of immediately available funds, an aggregate amount equal to the Company and Closing Merger Consideration;
(ii) to the Buyer, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares and the Preferred SharesEscrow Account, by wire transfer of immediately available funds, an amount equal to –
(A) the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger Consideration, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9Escrow Amount;
(iiiii) to the Representative Expense Account, by wire transfer of immediately available funds, an account amount equal to the Representative Expense Amount;
(iv) on behalf of the Company, by wire transfer of immediately available funds, to such accounts designated in writing by the holders of the Indebtedness, the amount then due to such holder as set forth in such payoff letters for each instrument evidencing Indebtedness that is to be paid off on the Closing Date from the holders of such Indebtedness (each, a "Payoff Letter"), setting forth the amounts necessary to pay off such Indebtedness under such instrument as of the Closing Date along with the per diem interest amount with respect thereto, and evidence of the release of (or commitment to release) all Encumbrances on the Company's Assets and UCC financing statements related thereto; and
(v) on behalf of the Company, to one or more accounts designated in writing by the Company, by wire transfer of immediately available funds, an the amount equal of Estimated Closing Transaction Fees to enable the aggregate Option Payment Amount payable in respect of Options Company to pay, or cause to be canceled as of paid, the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting SharesEstimated Closing Transaction Fees.
(b) From Prior to the Closing, the Representative and Parent will engage the Exchange Agent. At any time after the date hereof, the Company may cause a letter of transmittal in the form attached hereto as Exhibit E (each, a "Letter of Transmittal") to be mailed to each Stockholder. In the event that the Company does not cause a Letter of Transmittal to be mailed to each Stockholder, then as promptly as practicable after the Effective Time, upon but in any event within five Business Days after the surrender Closing, the Surviving Corporation shall cause to be mailed to each Stockholder a Letter of Transmittal. After the Payment Agent Effective Time, each holder of each a certificate or certificates representing Shares, other than certificates (x) representing Shares held in the Company's treasury or beneficially owned by Parent, Acquisition Sub or any other Affiliate of Parent or (y) representing Dissenting Shares (collectively, the "Certificates"), upon surrender of such Certificates and a duly executed Letter of Transmittal in to the form attached as Exhibit D hereto (eachExchange Agent, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) Total Per Share Merger Consideration for the number of Shares evidenced by such certificate multiplied by (ii) the Per Share Merger ConsiderationCertificate, and such certificate Certificate shall, after such surrender, be marked as canceled.
(c) From and after the Effective Time, upon the surrender to the Payment Agent of each certificate representing Preferred Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) an amount in cash equal to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) If any consideration is to be paid to a person Person other than the person Person in whose name the certificate representing Shares Certificate surrendered in exchange therefor is registered, it shall be a condition to such exchange that the person Person requesting such exchange shall deliver such Certificate accompanied by all documents required to evidence and effect such transfer, as well as such certificate, if applicable, transfer and shall pay to the Surviving Corporation any transfer or other taxes Taxes required by reason of the payment of such consideration to a person Person other than that of the registered holder of the Share, or the certificate, as applicable, Certificate so surrendered, or such person Person shall establish to the reasonable satisfaction of the Surviving Corporation that such tax Tax has been paid or is not applicable. If .
(d) In the event that any certificate Certificate for Shares shall have been lost, stolen or destroyed, the Payment Exchange Agent shall pay such portion of the Closing Merger Consideration as may be required pursuant to this Agreement in exchange therefore therefor, without interest thereon, upon the making of an affidavit of that fact by the holder thereof andthereof, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and (b) in all other cases, together with an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against as a condition precedent to the payment of any claim that may be made against the Surviving Corporation with respect Closing Merger Consideration attributable to such certificateShares.
(fe) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred StockShares. Until surrendered as contemplated by this Section 2.102.11, each certificate representing a Share Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Total Per Share Merger Consideration as may be required pursuant to this Agreement in respect of the Shares, whether or not exchange for each Share represented by a certificate, as contemplated by this Article 2such Certificate. If, after the Effective Time, certificates previously representing Dissenting Shares Certificates are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Exchange Agent and exchanged for the applicable portion of the Total Per Share Merger Consideration, Consideration as provided in may be required pursuant to this Article 2Agreement for each Share represented by such Certificate.
(gf) On or prior Any monies made available to the Closing Date, Exchange Agent for payment to the Company shall deliver Stockholders pursuant to Buyer and this Agreement that remain unclaimed by the Payment Agent a schedule setting forth Stockholders two years after the applicable Effective Time will be returned to the Surviving Corporation upon demand. Any such Stockholder who has not exchanged Shares for the Total Per Share Merger Consideration, Option Payment Amount and Consideration in accordance with this ARTICLE II prior to that time thereafter will look only to the respective portions Surviving Corporation for payment of the Total Per Share Merger Consideration in respect thereof. Any monies payable to the Stockholders pursuant to this Agreement that remain unclaimed by the Stockholders as of a date which each Equityholder is entitledimmediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity shall, including wire instructions in to the case extent permitted by applicable Law or Court Order, become the property of payments the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto. Neither Parent, the Exchange Agent nor the Surviving Corporation shall be liable to be made by wire transfer. For purposes of any Stockholder otherwise payable to the Stockholders pursuant to this AgreementAgreement that are delivered to a public official pursuant to any applicable abandoned property, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached heretoescheat or similar law.
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Payment of Merger Consideration. (a) On Immediately after the Closing DateEffective Time, Buyer the Surviving Corporation shall make (or cause deliver to each Eligible Holder who has delivered a duly executed and completed letter of transmittal and such other documents as may reasonably be made) the following payments:
(i) to an account, in the name of a financial institution reasonably acceptable to required by the Company and has surrendered the Buyerapplicable certificate(s) representing its Company Shares an aggregate amount in cash equal to the product of the number of Company Shares represented by such certificate(s) multiplied by the Per Share Merger Consideration, which shall act as payment agent (the “Payment Agent”) in effecting the surrender of certificates representing the Shares less any applicable income and the Preferred Shares, employment withholding tax by wire transfer of immediately available funds, an amount equal to –
(A) and less the Merger Consideration minus
(B) the sum of (1) the product of (y) the Per Share Merger ConsiderationEscrow Amount, multiplied by (z) the number of Shares of Common Stock held by Buyer, Acquisition Sub or any other Affiliate of Buyer, including Shares of Common Stock held by Buyer as a consequence of a contribution to Buyer by management of the Company in connection with the Merger, and the number of Shares that are Dissenting Shares, and (2) the aggregate Option Payment Amount payable in respect of all Options pursuant to Section 2.9;
(ii) to an account designated in writing by the Company, by wire transfer of immediately available funds, an amount equal to the aggregate Option Payment Amount payable in respect of Options to be canceled as of the Effective Time pursuant to Section 2.9; and
(iii) to an account designated in writing by the Surviving Corporation, by wire transfer of immediately available funds, an amount equal to the aggregate Per Share Merger Consideration for the Dissenting Sharesif applicable.
(b) From In the event that any holder of Company Shares, any member of JLL Healthcare or any holder of In-the-Money Options (collectively, the "Stockholders") does not execute and after deliver to Purchaser the Indemnification Agreement prior to the Effective TimeTime (any such Stockholder, upon a "Non-Executing Stockholder"), then the surrender Surviving Corporation shall withhold from the aggregate amount payable to the Payment Agent such Non-Executing Stockholder in respect of each certificate representing such Non-Executing Stockholder's Company Shares and a duly executed Letter of Transmittal in the form attached as Exhibit D hereto (each, a “Letter of Transmittal”) related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth in the Letter of Transmittal) In-the-Money Options hereunder an amount in cash (the "Escrow Amount") equal to the product of (i1) $50,000,000 and (2) such Non-Executing Stockholder's Percentage Interest (as defined in the number Indemnification Agreement). Any such amount so withheld shall be deposited in escrow immediately after the Effective Time with a third-party escrow agent mutually agreed upon by the Company and Purchaser for the purpose of Shares evidenced by such certificate multiplied by (ii) funding indemnification, substantially on the Per Share Merger Considerationterms, subject to the conditions and such certificate shall, after such surrender, be marked as canceledin the manner described in the Indemnification Agreement.
(c) From and after In the Effective Time, upon the surrender to the Payment Agent event of each certificate representing Preferred a transfer of ownership of Company Shares and a duly executed Letter of Transmittal related thereto, subject to Section 2.12, the holder of such certificate shall be entitled to receive in exchange therefor by check or wire transfer (as selected by such holder and set forth that is not registered in the Letter transfer records of Transmittal) an amount in cash equal the Company, payment may be made with respect to the product of (i) the number of Preferred Shares evidenced by such certificate multiplied by (ii) the Preferred Share Redemption Price, and shares to such certificate shall, after such surrender, be marked as canceled.
(d) From and after the Effective Time, the holder of each Plan Option which was outstanding and unexercised immediately prior to the Effective Time shall be entitled to receive in exchange therefor an amount in cash equal to the Option Payment Amount for each such Option, less applicable withholding pursuant to Section 2.12.
(e) If any consideration is to be paid to a person other than the person in whose name transferee if the certificate representing Shares surrendered in exchange therefor such shares is registeredpresented to the Company, it shall be a condition to such exchange that the person requesting such exchange shall deliver accompanied by all documents required to evidence and effect such transfer, as well as such certificate, if applicable, transfer and shall pay to the Surviving Corporation evidence that any applicable stock transfer or other taxes required by reason of the payment of such consideration to a person other than that of the registered holder of the Share, or the certificate, as applicable, so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. If any certificate for Shares shall have been lost, stolen or destroyed, the Payment Agent shall pay such portion of the Merger Consideration as may be required pursuant to this Agreement in exchange therefore upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation, (a) in the case of Persons holding in excess of 1% of the outstanding shares of Series A Common Stock immediately prior to the Effective Time, the posting of bond, in such reasonable amount as the Surviving Corporation may direct, and (b) in all other cases, an unsecured indemnity in customary form in favor of the Surviving Corporation, in each case against any claim that may be made against the Surviving Corporation with respect to such certificatepaid.
(f) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any Common Stock or Preferred Stock. Until surrendered as contemplated by this Section 2.10, each certificate representing a Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration in respect of the Shares, whether or not represented by a certificate, as contemplated by this Article 2. If, after the Effective Time, certificates previously representing Dissenting Shares are presented to the Surviving Corporation, they shall be canceled, delivered to the Payment Agent and exchanged for the applicable portion of the Merger Consideration, as provided in this Article 2.
(g) On or prior to the Closing Date, the Company shall deliver to Buyer and the Payment Agent a schedule setting forth the applicable Per Share Merger Consideration, Option Payment Amount and the respective portions of the Merger Consideration to which each Equityholder is entitled, including wire instructions in the case of payments to be made by wire transfer. For purposes of this Agreement, “Equityholders” means the Shareholders (as defined below) and the holders of Options, which Equityholders are listed on Schedule I hereto. “Shareholders” means all holders of Common Stock, which holders are listed on Schedule I attached hereto.
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Sources: Merger Agreement (Biltmore Surgery Center Holdings Inc)