Payment of Merger Consideration. (a) At the Effective Time, as required by Section 3.5(b) hereof, the Company shall deposit with such agent or agents as may be appointed by the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and the Merger Consideration deposited with the Payment Agent is referred to as the "Merger Fund"). (b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership): (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the LP Interests shall pass to the Company only upon delivery of the Certificates (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof (taking into account different classes (if any) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent together with such letter of transmittal duly executed, the holder of such LP Interests shall be entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment of the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate. (c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company. (d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof. (e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From and after the Effective Time, there shall be no further registration of transfers on the transfer books of the Surviving Partnerships of LP Interests in the Participating Merging Partnerships which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests. (f) None of the Payment Agent, the parties to this Agreement, the Transitory Partnerships, the Company LLCs or any of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. (g) Any portion of the Merger Fund which remains undistributed to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement").
Appears in 2 contracts
Sources: Master Agreement (Goldman Sachs Group Inc), Master Agreement (Goldman Sachs Group Inc)
Payment of Merger Consideration. (a) At Concurrent with the Effective Time, as required by Section 3.5(b) hereof, the Company Parent shall deposit with ChaseMellon Shareholder Services or such other agent or agents as may be appointed by the Company Parent and Acquisition (the "Payment Agent") for the benefit of the holders of LP Interests Shares cash in the Participating Merging Partnerships, cash in an aggregate amount equal necessary to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and pay the Merger Consideration deposited with the Payment Agent (such cash is hereinafter referred to as the "Merger Fund")) payable pursuant to Section 1.8 in respect of outstanding Shares.
(b) Immediately following As soon as reasonably practicable after the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) a certificate or certificates which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships Shares (the "Certificates") and which whose Shares were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
1.8: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the LP Interests Certificates shall pass to the Company only upon delivery of the Certificates (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) to the Payment Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably specify); ) and (ii) instructions for use in effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof (taking into account different classes (if any) of LP Interests in such Participating Merging Partnership)Merger Consideration. Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent together with such letter of transmittal duly executed, the holder of such LP Interests Certificate shall be entitled to receive in exchange therefor a check representing the Per Unit Merger Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, the provisions of this Article I and any Certificates the Certificate so surrendered shall forthwith be cancelledcanceled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership Shares which is not registered in the transfer records of such Participating Merging Partnershipthe Company, payment of the Per Unit Merger Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) Shares is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfertransfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From and after the Effective Time, there shall be no further registration of transfers on the transfer books of the Surviving Partnerships of LP Interests in the Participating Merging Partnerships which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(f) None of the Payment Agent, the parties to this Agreement, the Transitory Partnerships, the Company LLCs or any of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion of the Merger Fund which remains undistributed to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement").this
Appears in 2 contracts
Sources: Merger Agreement (Safeway Inc), Merger Agreement (Carr Gottstein Foods Co)
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by the Stockholder of her Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit D and the certificates, if any, evidencing such Equity Interests to the Company, the Company Stockholder shall deposit with such agent or agents as may be appointed by entitled to receive from the Company (in exchange therefor the "Payment Agent") for the benefit portion of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and the Merger Consideration deposited with to which the Payment Agent Stockholder is referred to as entitled (less the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of the Stockholder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests.
(b) Notwithstanding any other provisions of this Agreement, dividends or other distributions payable on any portion of the Certificates (orMerger Consideration after the Effective Time, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has to the right to receive Stockholder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter of transmittal duly executedStockholder, the holder of such LP Interests shall be as set forth in Schedule 1.07, entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed to and this Agreement by the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time Stockholder shall be delivered to the Company, upon demand constitute approval of the Company, Escrow Agreement and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of all of the Per Unit Consideration arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, in escrow and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half appointment of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Stockholder’s Representative.
Appears in 2 contracts
Sources: Merger Agreement (Otto Alexander), Merger Agreement (Paramount Group, Inc.)
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by the Equity Holder of its Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit A and the certificates, if any, evidencing such Equity Interests to the Company, the Company Equity Holder shall deposit with such agent or agents as may be appointed by entitled to receive from the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and exchange therefor the Merger Consideration deposited with to which the Payment Agent Equity Holder is referred to as entitled (less the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of the Equity Holder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests. The full amount of the Certificates Indemnity Holdback Amount shall be retained from the Merger Consideration otherwise deliverable to the Equity Holder.
(orb) Notwithstanding any other provisions of this Merger Agreement, in the case of dividends or other distributions payable on any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP portion of the affidavit specified in Section 3.5(d) hereof) Merger Consideration after the Effective Time, but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has to the right to receive Equity Holder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Equity Holder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07(b), entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed and this Merger Agreement by the Equity Holder shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount in escrow and the appointment of the Equity Holder’s Representative pursuant to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Contribution Agreement.
Appears in 2 contracts
Sources: Contribution Agreement (Paramount Group, Inc.), Merger Agreement (Paramount Group, Inc.)
Payment of Merger Consideration. (a) At or from time to time following the Effective Time, as required by necessary to satisfy the requirements of Section 3.5(b) hereof2.11(b), Holding or the Company Surviving Corporation shall deposit with deliver to such agent or agents as may be duly appointed by Purchaser and reasonably satisfactory to the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal sufficient to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and pay the Merger Consideration deposited with the Payment Agent is (such cash hereinafter referred to as the "Merger Fund")) payable pursuant to Section 2.7 in exchange for outstanding Shares.
(b) Immediately following As soon as reasonably practicable after the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) a certificate or certificates which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships Shares (the "Certificates") and which whose shares were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
2.7: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the LP Interests Certificates shall pass to the Company only upon delivery of the Certificates (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) to the Payment Agent and shall be in such form and have such other provisions as Holding and the Company may reasonably specify); ) and (ii) instructions for use in effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof (taking into account different classes (if any) of LP Interests in such Participating Merging Partnership)Merger Consideration. Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent together with such letter of transmittal duly executed, the holder of such LP Interests Certificate shall be entitled to receive in exchange therefor a check representing the Per Unit Merger Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, the provisions of Article II and any Certificates the Certificate so surrendered shall forthwith be cancelledcanceled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership Shares which is not registered in the transfer records of such Participating Merging Partnershipthe Company, payment of the Per Unit Merger Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) Shares is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfertransfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 3.52.11, each Certificate shall be deemed at and any time after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Merger Consideration Amount which the holder of such Certificate has the right to receive pursuant to as contemplated by this Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate2.11.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Unit such Merger Consideration Amount which the holder of such Certificate has the right to receive as may be required pursuant to Section 3.4 hereofthis Agreement; provided, however, that the Purchaser or its Payment Agent shall (unless the Company determines otherwise) may, in its discretion, require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Companyby such holder.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships Shares in accordance with the terms of this Agreement hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; providedShares, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From and after the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Partnerships Corporation of LP Interests in the Participating Merging Partnerships Shares which were outstanding immediately prior to the Effective Time. If, If after the Effective Time, Time Certificates are presented to the Surviving Partnerships Corporation for any reason, such Certificates they shall be canceled cancelled and exchanged as provided in this Section 3.5. If, Article II.
(e) Any portion of the Merger Fund which remains undistributed to the stockholders of the Company for six months after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner Time shall be delivered to such owner in exchange the Surviving Corporation upon demand and any stockholders of the Company who have not theretofore complied with this Article II shall thereafter look only to the Surviving Corporation for such LP Interestspayment of their claim for the Merger Consideration.
(f) None of Neither Holding nor the Payment Agent, the parties to this Agreement, the Transitory Partnerships, the Company LLCs or any of their respective affiliates Surviving Corporation shall be liable to any holder of an LP Interest in a Participating Merging Partnership Shares for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion of the Merger Fund which remains undistributed to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement").
Appears in 1 contract
Sources: Merger Agreement (NCH Corp)
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by the Equity Holder of his Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit A and the certificates, if any, evidencing such Equity Interests to the Company, the Company Equity Holder shall deposit with such agent or agents as may be appointed by entitled to receive from the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and exchange therefor the Merger Consideration deposited with to which the Payment Agent Equity Holder is referred to as entitled (less the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of the Equity Holder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests. The full amount of the Certificates Indemnity Holdback Amount shall be retained from the Merger Consideration otherwise deliverable to the Equity Holder.
(orb) Notwithstanding any other provisions of this Merger Agreement, in the case of dividends or other distributions payable on any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP portion of the affidavit specified in Section 3.5(d) hereof) Merger Consideration after the Effective Time, but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has to the right to receive Equity Holder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Equity Holder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07(b), entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed and this Merger Agreement by the Equity Holder shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount in escrow and the appointment of the Equity Holder’s Representative pursuant to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Contribution Agreement.
Appears in 1 contract
Payment of Merger Consideration. (a) At Prior to the Effective TimeClosing, Purchaser shall appoint the Paying Agent, at its sole cost and expense (provided, that $3,500 of such expenses shall be a Company Transaction Expenses as required by Section 3.5(bset forth in clause (e) hereofof the definition thereof), to act as paying agent for the payment of amounts payable in respect of the Common Stock in connection with the terms of this Agreement and, in connection therewith, shall enter into, on the Closing Date, the Company shall deposit with such agent Paying Agent Agreement.
(b) At or agents as may be appointed by prior to the Company (Closing, Purchaser will deliver to the "Payment Paying Agent") , for further payment to the benefit of Eligible Holders pursuant to the holders of LP Interests in the Participating Merging PartnershipsPaying Agent Agreement, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Closing Per Share Merger Consideration," , multiplied by (ii) the total number of issued and outstanding shares of Common Stock as of immediately prior to the Effective Time (the “Aggregate Closing Merger Consideration deposited with the Payment Agent is referred to as the "Merger Fund"Consideration”).
(bc) Immediately following the Effective Time, the Payment Paying Agent shall mail deliver to each holder Eligible Holder who has delivered a duly executed and completed letter of record transmittal in the form attached hereto as Exhibit D (the “Letter of certificate(sTransmittal”) which immediately prior and such other documents as may reasonably be required by the Paying Agent, an aggregate amount in cash equal to the Effective Time represented outstanding LP Interests product of the number of shares of Common Stock so surrendered multiplied by the Closing Per Share Merger Consideration, by wire transfer of immediately available funds to an account designated in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof such Eligible Holder’s Letter of Transmittal (or, in at the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record request of an LP Interest in such Merging Private Partnership):Eligible Holder, by check).
(id) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the LP Interests shall pass to the Company only upon delivery of the Certificates (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof (taking into account different classes (if any) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent together with such letter of transmittal duly executed, the holder of such LP Interests shall be entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which Common Stock that is not registered in the transfer records of such Participating Merging Partnershipthe Company, payment of the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made with respect to such shares to such a transferee if satisfactory evidence of the Certificate representing ownership of such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) Common Stock is presented to the Payment Agent Company, accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this Section 3.5, each Certificate shall be deemed at transfer and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event evidence that any Certificate shall applicable stock transfer taxes have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereofpaid.
(e) All Notwithstanding anything to the contrary contained herein or otherwise, shares of Common Stock 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 paid upon as provided in Section 2.04(b), but instead shall entitle the surrender for exchange holder thereof to payment of LP Interests in the Participating Merging Partnerships fair value of such shares in accordance with the terms provisions of this Agreement 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 any such holder shall fail to perfect or otherwise shall validly 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 paid in full satisfaction of all rights pertaining to such LP Interests; providedconverted, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From and after the Effective Time, there into, and shall be no further registration have become, the right to receive the Closing Per Share Merger Consideration as provided in Section 2.04(b), without interest. The Company shall serve prompt notice to Purchaser of transfers on any demands for appraisal of any shares of Common Stock, and Purchaser shall have the transfer books of the Surviving Partnerships of LP Interests right to participate in the Participating Merging Partnerships which were outstanding immediately prior all negotiations and proceedings with respect to such demands. Prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(f) None of the Payment Agent, the parties to this Agreement, the Transitory Partnerships, the Company LLCs shall not, without the prior written consent of Purchaser (which shall not be unreasonably withheld, conditioned or delayed), make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawforegoing.
(g) Any portion of the Merger Fund which remains undistributed to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement").
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by the Equity Holder of his Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit A and the certificates, if any, evidencing such Equity Interests to the Company, the Company Equity Holder shall deposit with such agent or agents as may be appointed by entitled to receive from the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and exchange therefor the Merger Consideration deposited with to which the Payment Agent Equity Holder is referred to as entitled (less the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of the Equity Holder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests. The full amount of the Certificates Indemnity Holdback Amount shall be retained from the Merger Consideration otherwise deliverable to the Equity Holder.
(orb) Notwithstanding any other provisions of this Merger Agreement, in the case of dividends or other distributions payable on any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP portion of the affidavit specified in Section 3.5(d) hereof) Merger Consideration after the Effective Time, but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has to the right to receive Equity Holder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Equity Holder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07, entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed and this Merger Agreement by the Equity Holder shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount in escrow and the appointment of the Equity Holder’s Representative pursuant to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Contribution Agreement.
Appears in 1 contract
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by a Stockholder of its Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit D and the certificates, if any, evidencing such Equity Interests to the Company, such Stockholder shall be entitled to receive from the Company shall deposit with such agent or agents as may be appointed by in exchange therefor the Company (the "Payment Agent") for the benefit portion of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and the Merger Consideration deposited with to which such Stockholder is entitled (less such Stockholder’s respective portion of the Payment Agent is referred to as the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of a Stockholder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests.
(b) Notwithstanding any other provisions of this Agreement, dividends or other distributions payable on any portion of the Certificates (orMerger Consideration after the Effective Time, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has the right to receive a Stockholder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Stockholder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07(b), entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed to and this Agreement by the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time Stockholders shall be delivered to the Company, upon demand constitute approval of the Company, Escrow Agreement and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of all of the Per Unit Consideration arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, in escrow and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half appointment of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Otto Alexander)
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by the Equity Holder of her Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit A and the certificates, if any, evidencing such Equity Interests to the Company, the Company Equity Holder shall deposit with such agent or agents as may be appointed by entitled to receive from the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and exchange therefor the Merger Consideration deposited with to which the Payment Agent Equity Holder is referred to as entitled (less the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of the Equity Holder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests. The full amount of the Certificates Indemnity Holdback Amount shall be retained from the Merger Consideration otherwise deliverable to the Equity Holder.
(orb) Notwithstanding any other provisions of this Merger Agreement, in the case of dividends or other distributions payable on any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP portion of the affidavit specified in Section 3.5(d) hereof) Merger Consideration after the Effective Time, but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has to the right to receive Equity Holder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Equity Holder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07(b), entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed and this Merger Agreement by the Equity Holder shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount in escrow and the appointment of the Equity Holder’s Representative pursuant to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Contribution Agreement.
Appears in 1 contract
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by a Stockholder of its Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit D and the certificates, if any, evidencing such Equity Interests to the Company, such Stockholder shall be entitled to receive from the Company shall deposit with such agent or agents as may be appointed by in exchange therefor the Company (the "Payment Agent") for the benefit portion of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and the Merger Consideration deposited with to which such Stockholder is entitled (less such Stockholder’s respective portion of the Payment Agent is referred to as the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of a Stockholder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests.
(b) Notwithstanding any other provisions of this Agreement, dividends or other distributions payable on any portion of the Certificates (orMerger Consideration after the Effective Time, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has the right to receive a Stockholder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Stockholder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07, entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed to and this Agreement by the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time Stockholders shall be delivered to the Company, upon demand constitute approval of the Company, Escrow Agreement and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of all of the Per Unit Consideration arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, in escrow and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half appointment of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Stockholders’ Representative.
Appears in 1 contract
Payment of Merger Consideration. (a) At the Effective TimeClosing, as required by Section 3.5(bBroder shall pay the Aggregate Merger Consideration by:
(i) hereof, the Company shall deposit with such agent or agents as may be appointed by the Company (the "Payment Agent") for the benefit delivery of the holders Escrow Amount by wire transfer of LP Interests immediately available funds to an account designated in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating writing by ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ Partnership & Co., as escrow agent (such sumthe “Escrow Agent”), established pursuant to the terms of an escrow agreement, dated as the date hereof, by and among Merger Corp., the "Merger Consideration," Company, each of the Shareholders and the Escrow Agent (the “Escrow Agreement”), which Escrow Amount shall be used to satisfy amounts payable to the Surviving Trust as indemnification to the Company pursuant to Article 9;
(ii) delivery of the Cash Merger Consideration deposited (as adjusted pursuant to Section 2.10 below) by wire transfer of immediately available funds to an account or accounts designated by the Company, in accordance with the Payment Agent is referred procedure set forth in Section 2.9(b); and
(iii) delivery, on behalf of the Company, of the amount of Estimated Net Indebtedness (as defined below) to as the "Merger Fund")lenders under the Financing Documents in repayment of the outstanding obligations thereunder.
(b) Immediately Prior to the Effective Time, each Shareholder shall deliver his or its surrender certificates evidencing his or its Shares of Beneficial Interest (the “Certificates”) and subject to the receipt of such Certificates, immediately following the Effective Time, Broder shall pay the Payment Agent shall mail applicable portion of the Cash Merger Consideration to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the LP Interests shall pass to the Company only upon delivery of the Certificates (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof (taking into account different classes (if any) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent together with such letter of transmittal duly executed, the holder of such LP Interests shall be entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment of the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any CertificateShareholder.
(c) In effecting the event that any Certificate shall have been lost, stolen or destroyed, payment of the Payment Agent shall issue Cash Merger Consideration in exchange thereforrespect of Shares of Beneficial Interest deemed converted represented by Certificates entitled to payment pursuant to Section 2.8, upon the making surrender of an affidavit of that fact by the holder thereofeach such Certificate, the Per Unit Consideration Amount which Broder shall pay the holder of such Certificate has the right to receive pursuant to Per Share Amount specified in Section 3.4 hereof; provided2.8 multiplied by the number of Shares of Beneficial Interest represented by the Certificate in consideration therefor. Upon such payment, however, that the Payment Agent such Certificate shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall forthwith be acceptable to the Companycanceled.
(d) In From and after the case of LP Interests in the Participating Merging Partnerships which are Merging Private PartnershipsEffective Time, the Payment Agent Company shall issue act as exchange agent. To the extent that Certificates are not surrendered at the Effective Time pursuant to paragraph (b) above, the Company shall deposit, or the Company shall otherwise take all steps necessary to cause to be deposited in exchange therefor, upon the making of an affidavit as account with such reputable banking institution mutually satisfactory to the identity parties (the “Exchange Fund”) the Cash Merger Consideration to which holders of each owner of LP Interests in such Merging Private Partnership by MPLP (in unsurrendered Certificates shall be entitled at the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive Effective Time pursuant to Section 3.4 2.8 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships Until surrendered in accordance with paragraph (b) above, each such Certificate shall represent solely the terms of this Agreement right to receive the aggregate merger consideration relating thereto. No interest or dividends shall be deemed paid or accrued on the merger consideration. If all or any portion of any merger consideration is to have be delivered to any Person other than the Person in whose name the Certificate formerly representing Shares of Beneficial Interest surrendered therefor is registered, it shall be a condition to such right to receive such merger consideration that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person surrendering such Certificates shall pay to the Company any transfer or other Taxes required by reason of the payment of the merger consideration to a Person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Company that such Tax has been paid in full satisfaction or is not applicable.
(f) No dividends or other distributions with respect to shares of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions beneficial interest with a record date prior to after the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior shall be paid to the date holder of this Agreement and, in either case, which remain unpaid at any unsurrendered Certificate with respect to the shares of beneficial interest represented thereby.
(g) After the Effective Time Time, the Surviving Trust shall retain all cash, Certificates and other documents in its possession relating to the transactions described in this Agreement. Thereafter, each holder of a Certificate formerly representing Share of Beneficial Interest may surrender such Certificate to the Surviving Trust and (iisubject to applicable abandoned property, escheat and similar laws) to distribute to receive in consideration therefor the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance merger consideration relating thereto, without any interest or dividends thereon.
(if anyh) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From and after After the Effective Time, there shall be no further registration of transfers on the share transfer books of the Surviving Partnerships Trust of LP Interests in the Participating Merging Partnerships any shares of beneficial interest which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates formerly representing Shares of Beneficial Interest are presented to the Surviving Partnerships for any reasonTrust, such Certificates they shall be surrendered and canceled and exchanged in return for the payment of the Per Share Amount relating thereto, as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests2.9.
(fi) None of the Payment Agent, the parties to this Agreement, the Transitory Partnerships, Neither Merger Corp. nor the Company LLCs or any of their respective affiliates shall be liable to any holder Person in respect of an LP Interest in a Participating Merging Partnership for any cash from the Merger Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
. If any Certificates shall not have been surrendered prior to seven (g7) Any portion of the Merger Fund which remains undistributed to the holders of LP Interests in the Participating Merging Partnerships for a period of six months years after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and (or immediately prior to such earlier date on which any dividends or distributions with respect to shares of capital stock in respect of such Certificate would otherwise escheat to or become the property of any governmental authority) any such shares, cash, dividends or distributions contemplated in respect of such Certificate shall, to the extent permitted by Section 2.4(c) hereofapplicable law, in an amount in cash equal to one-half become the property of the amount Surviving Trust, free and clear of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")all claims or interest of any person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (Broder Bros Co)
Payment of Merger Consideration. (a) At After the Effective Time, upon surrender by the Equity Holder of her Equity Interests together with a duly executed letter of transmittal in the form attached hereto as required by Section 3.5(b) hereofExhibit A and the certificates, if any, evidencing such Equity Interests to the Company, the Company Equity Holder shall deposit with such agent or agents as may be appointed by entitled to receive from the Company (the "Payment Agent") for the benefit of the holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal to the sum of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and exchange therefor the Merger Consideration deposited with to which the Payment Agent Equity Holder is referred to as entitled (less the "Merger Fund"Indemnity Holdback Amount).
(b) Immediately following the Effective Time, the Payment Agent shall mail to each holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right to receive the Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(i) a letter of transmittal (which shall specify that delivery shall be effected and risk . Risk of loss and title to the LP Equity Interests of the Equity Holder shall pass only upon delivery to the Company only upon delivery of such duly executed letter of transmittal and the certificates, if any, evidencing such Equity Interests. The full amount of the Certificates Indemnity Holdback Amount shall be retained from the Merger Consideration otherwise deliverable to the Equity Holder.
(orb) Notwithstanding any other provisions of this Merger Agreement, in the case of dividends or other distributions payable on any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP portion of the affidavit specified in Section 3.5(d) hereof) Merger Consideration after the Effective Time, but prior to the Payment Agent and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for portion of the Per Unit Merger Consideration Amount which such holder has to the right to receive Equity Holder pursuant to Section 3.4 hereof (taking into account different classes (if any1.09(a) of LP Interests in such Participating Merging Partnership). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) above, shall be paid promptly by the Company to the Payment Agent together with such letter Equity Holder of transmittal duly executedrecord, the holder of such LP Interests shall be as set forth in Schedule 1.07, entitled to receive in exchange therefor a check representing the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof, and any Certificates so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment portion of the Per Unit Merger Consideration Amount upon compliance with the procedures set forth in this Section, less the amount of any withholding taxes which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered thereon as contemplated by this Section 3.5, each Certificate shall be deemed at and after the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact reasonably determined by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereof. From At and after the Effective Time, there shall be no further registration of transfers on the transfer applicable record books of the Surviving Partnerships of LP Equity Interests in the Participating Merging Partnerships which were that are outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner in exchange for such LP Interests.
(fc) None of On the Payment Agent, the parties to this Agreement, the Transitory PartnershipsMerger Closing Date, the Company LLCs or any will deposit the Indemnity Holdback Amount with the Escrow Agent (as defined in the Escrow Agreement) in accordance with the terms and conditions of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion Escrow Agreement. The approval of the Merger Fund which remains undistributed and this Merger Agreement by the Equity Holder shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Indemnity Holdback Amount in escrow and the appointment of the Equity Holder’s Representative pursuant to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement")Contribution Agreement.
Appears in 1 contract
Payment of Merger Consideration. (a) At Prior to the Effective Time, as required by Section 3.5(b(i) hereof, Parent shall appoint a bank or trust company reasonably acceptable to the Company shall deposit to act as paying agent with such agent or agents as may be appointed by respect to the Company Mergers (the "Payment “Exchange Agent"”), and (ii) for Parent shall deposit, or shall cause to be deposited, with the benefit of Exchange Agent cash amounts sufficient to enable the Exchange Agent to make payments pursuant to Section 2.5 or Section 2.6(a), as applicable, to holders of LP Interests in the Participating Merging Partnerships, cash in an aggregate amount equal Company Common Shares and Partnership Common Units outstanding immediately prior to the sum Effective Time (the “Exchange Fund”). The Exchange Agent shall make payments of the Participating Partnership Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, the "Merger Consideration," and the Merger Consideration out of the Exchange Fund in accordance with this Agreement. Any and all interest earned on cash deposited with in the Payment Agent is referred Exchange Fund shall be paid to as the "Merger Fund")Surviving Entity.
(b) Immediately following Within five (5) Business Days after the Effective Time, Parent and the Payment Surviving Entity shall cause the Exchange Agent shall to mail to each holder of record of certificate(s) which a Certificate or Certificates that, immediately prior to the Company Merger Effective Time Time, represented outstanding LP Interests in Company Common Shares or that, immediately prior to the Participating Merging Partnerships (the "Certificates") and which Partnership Merger Effective Time, represented Partnership Common Units whose shares or units, as applicable, were converted into the right to receive or be exchanged for the Merger Consideration Consideration, as applicable, pursuant to Section 3.4 hereof (or2.5 or Section 2.6(a), in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
as applicable: (i) a form of letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the LP Interests Certificates shall pass to the Company Exchange Agent, only upon delivery of the Certificates (or, or affidavits of loss in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified lieu thereof in accordance with Section 3.5(d) hereof2.7(d) to the Payment Agent Exchange Agent, and which letter shall be in such form and have such other provisions as are mutually approved by Parent and the Company may reasonably specify); Company) and (ii) instructions for use in effecting the surrender of Certificates previously representing such Company Common Shares or Partnership Common Units in exchange for payment therefor. Parent shall ensure that, upon surrender to the Exchange Agent of each such Certificates (or delivery affidavits of such appropriate documentation and affidavit) loss in exchange for the Per Unit Consideration Amount which such holder has the right to receive lieu of a Certificate pursuant to Section 3.4 hereof (taking into account different classes (if any) of LP Interests in such Participating Merging Partnership2.7(d). Upon surrender of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent ), together with such a properly executed letter of transmittal duly executedtransmittal, the holder of such LP Interests Certificates (or, under the circumstances described in Section 2.7(e), the transferee of the Company Common Shares or Partnership Units previously represented by such Certificates) shall be entitled to promptly receive in exchange therefor a check representing the Per Unit Consideration Amount amount of cash to which such holder has the right to receive (or transferee) is entitled pursuant to Section 3.4 hereof2.5 or Section 2.6(a), and any Certificates so surrendered shall forthwith be cancelledas applicable. In the event Exchange of a transfer of ownership of LP Interests in a Participating Merging book-entry shares or book-entry units representing Company Common Shares or Partnership which is not registered in the transfer records of such Participating Merging Partnership, payment of the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made to a transferee if the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) is presented to the Payment Agent accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this Section 3.5, each Certificate Common Units shall be deemed at and after effected in accordance with the Effective Time to represent only the right to receive upon such Certificate's surrender the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations Exchange Agent’s customary procedures with respect to any foreign holders of LP Interests in connection with the payment of any Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificatesecurities represented by book entry.
(c) In On or after the event that first anniversary of the Effective Time, the Surviving Entity shall be entitled to cause the Exchange Agent to deliver to the Surviving Entity any funds made available by Parent to the Exchange Agent which have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to Parent and the Surviving Entity with respect to the cash amounts payable upon surrender of their Certificates. Neither the Exchange Agent nor the Surviving Entity shall be liable to any holder of a Certificate for any amount properly paid to a public official pursuant to any applicable abandoned property or escheat Law. Any amounts remaining unclaimed by holders of the Certificates, book-entry shares or book-entry units immediately prior to the time at which such amounts would otherwise escheat to, or become the property of, any Governmental Entity shall, to the extent permitted by applicable Law, become the property of the Surviving Entity, free and clear of any claims or interest of any such holders or their successors, assigns or personal representatives previously entitled thereto.
(d) If any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange thereforthen, upon the making of an affidavit of that fact by the holder thereofPerson claiming such Certificate to be lost, stolen or destroyed, to the reasonable satisfaction of Parent and the Exchange Agent and the taking of such other actions as may be reasonably requested by the Exchange Agent, the Per Unit Consideration Amount which Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the holder of such Certificate has the right to receive cash amount payable in respect thereof pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereofthis Agreement.
(e) All In the event of a transfer of ownership of Company Common Shares or Partnership Common Units that is not registered in the transfer records of the Company or the Operating Partnership, as applicable, payment may be made with respect to such Company Common Shares or Partnership Common Units to a transferee of such Company Common Shares or Partnership Common Units if the Certificate (if applicable) previously representing such Company Common Shares or Partnership Common Units is presented to the Exchange Agent, accompanied by all documents reasonably required by the Exchange Agent to evidence and effect such transfer and to evidence that any applicable stock transfer taxes relating to such transfer have been paid.
(f) As of the Company Merger Effective Time, the share transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of any Company Capital Shares outstanding immediately prior to the Company Merger Effective Time on the records of the Company. The Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of this Agreement Article 2 upon surrender of any Certificates (or automatically in the case of book-entry shares of Company Common Shares) shall be deemed to have been paid in full satisfaction of all rights pertaining to such LP Interests; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Surviving Partnership in each of the Mergers shall continue to have an obligation following the Effective Time (i) to pay distributions with a record date prior to the Effective Time which may have been declared by a Participating Merging Partnership on LP Interests in such Participating ▇▇▇▇▇▇ Partnership in accordance with the terms of this Agreement or declared prior to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect of such Participating Merging Partnership in accordance with Section 2.4(c) hereofCertificates. From and after the Company Merger Effective Time, there shall be no further registration the holders of transfers on the transfer books of the Surviving Partnerships of LP Interests in the Participating Merging Partnerships which were Company Common Shares outstanding immediately prior to the Company Merger Effective TimeTime shall cease to have any rights with respect to such shares of Company Common Shares except as otherwise provided for herein or by applicable Law. If, after the Effective Time, Certificates representing such Company Common Shares are presented to the Surviving Partnerships Entity for any reasontransfer, such Certificates they shall be canceled cancelled and exchanged as provided in this Section 3.5Agreement.
(g) As of the Partnership Merger Effective Time, the unit transfer books of the Operating Partnership shall be closed and thereafter there shall be no further registration of transfers of any Partnership Units outstanding immediately prior to the Partnership Merger Effective Time on the records of the Operating Partnership. The Merger Consideration paid in accordance with the terms of this Article 2 upon surrender of any Certificates (or automatically in the case of book-entry units of Partnership Units) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Certificates. From and after the Partnership Merger Effective Time, the holders of Partnership Units outstanding immediately prior to the Partnership Merger Effective Time shall cease to have any rights with respect to such Partnership Units except as otherwise provided for herein or by applicable Law. If, after the Partnership Merger Effective Time, owners of LP Interests in any Merging Private Partnerships who Certificates representing such Partnership Units are identified on the affidavits described in Section 3.5(d) hereof request payment in respect of such LP Interests from presented to the Surviving Partnerships Partnership for any reasontransfer, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner they shall be delivered to such owner cancelled and exchanged as provided in exchange for such LP Intereststhis Agreement.
(fh) None After the Closing Date, the Exchange Agent shall invest any cash included in the Exchange Fund as directed by the Surviving Entity. Any interest and other income resulting from such investments shall be paid to the Surviving Entity. Until the termination of the Payment AgentExchange Fund, to the parties extent that there are losses with respect to this Agreementsuch investments, or the Transitory Partnerships, the Company LLCs or any of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion of the Merger Exchange Fund which remains undistributed diminishes for other reasons below the level required to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand make prompt payments of the CompanyMerger Consideration as contemplated hereby, and any such holder who has not theretofore complied with this Section 3.5 the Surviving Entity shall thereafter look only to promptly replace or restore the Company for payment cash portion of the Per Unit Consideration Amount which such holder had Exchange Fund lost through investments or other events so as to ensure that the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half portion of the amount of the charges and expenses relating Exchange Fund is, at all times, maintained at a level sufficient to the Payment Agent (the "Merger Expense Reimbursement")make all such payments.
Appears in 1 contract
Payment of Merger Consideration. (a) At Prior to the Effective Time, as required by Section 3.5(b) hereof, Parent shall designate the Depositary or such other bank or trust company reasonably satisfactory to the Company shall deposit with such to act as agent or agents as may be appointed by the Company (the "Payment AgentPAYING AGENT") for the benefit of the holders of LP Interests in shares of Company Stock to receive the Participating Merging Partnerships, cash in an aggregate amount equal Initial Merger Consideration to which holders of Company Stock shall become entitled hereunder. On or prior to the sum of Closing, Parent shall transfer to the Participating Partnership Paying Agent the cash, subject to SECTION 2.02(g), necessary to pay the Aggregate Initial Common Stock Consideration Amounts for each Participating ▇▇▇▇▇▇ Partnership (such sum, and the "Aggregate Series H Merger Consideration," and the Merger Consideration . The Contingent Payments (as defined in SECTION 2.03(a)), if earned, shall be paid as provided in SECTION 2.02(d). The Excess Warrant Proceeds (as defined in SECTION 2.04(b)), if any, shall be paid as provided in SECTION 2.02(f). All funds deposited with the Payment Paying Agent is referred to shall be invested by the Paying Agent in (i) certificates of deposits in or repurchase agreements from United States commercial banks having capital resources in excess of $1 billion, (ii) obligations of the United States government or any agency thereof, (iii) obligations guaranteed by the United States government, (iv) in money market accounts in financial institutions having capital resources in excess of $1 billion or (v) as otherwise provided in the "Merger Fund")agreement entered into between the Paying Agent, Parent and the Company; provided, however, that all such investments will be in short term, highly liquid investments. Parent shall pay the fees and expenses of the Paying Agent.
(b) Immediately following Promptly after the Effective Time, Parent shall cause the Payment Paying Agent shall to mail to each Person who was, at the Effective Time, a holder of record of certificate(s) which immediately prior to the Effective Time represented outstanding LP Interests in the Participating Merging Partnerships (the "Certificates") and which were converted into the right shares of Company Stock entitled to receive the applicable Per Share Merger Consideration pursuant to Section 3.4 hereof (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, each holder of record of an LP Interest in such Merging Private Partnership):
(iSECTION 2.01(a) a form of letter of transmittal (which shall specify that delivery shall be effected effected, and risk of loss and title to the LP Interests certificates or Depositary Receipts evidencing such shares of Company Stock (the "CERTIFICATES") shall pass to the Company pass, only upon proper delivery of the Certificates (or, in the case of any Participating Merging Partnership which is a Merging Private Partnership, upon the delivery by such holder of record of appropriate documentation and the delivery by MPLP of the affidavit specified in Section 3.5(d) hereof) to the Payment Agent Paying Agent) and shall be in such form and have such other provisions as the Company may reasonably specify); and (ii) instructions for use in effecting the surrender of the Certificates (or delivery of such appropriate documentation and affidavit) in exchange for the Per Unit Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof (taking into account different classes (if any) such letter of LP Interests in such Participating Merging Partnership)transmittal. Upon surrender to the Paying Agent of a Certificate for cancellation (or delivery of such appropriate documentation and affidavit) to the Payment Agent Certificate, together with such letter of transmittal transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required pursuant to such instructions, the holder of such LP Interests Certificate shall be entitled to receive in exchange therefor the applicable Per Share Merger Consideration. Provision shall be made for holders of Certificates or Depositary Receipts evidencing such shares of Company Stock to procure in person immediately after the Effective Time a check representing letter of transmittal and to deliver in person immediately after the Per Unit Effective Time such letter of transmittal and Certificates or Depositary Receipts in exchange for that portion of the Initial Merger Consideration Amount to which such holder has holders are entitled hereunder.
(c) Except as provided in SECTION 2.03(g) or SECTION 9.02(c), no interest shall accrue or be paid on the right applicable Per Share Merger Consideration. If the payment equal to receive pursuant the applicable Per Share Merger Consideration is to Section 3.4 hereofbe made to a Person other than the Person in whose name the surrendered Certificate formerly evidencing shares of Company Stock is registered on the stock transfer books of the Company, and any Certificates it shall be a condition of payment that the Certificate so surrendered shall forthwith be cancelledendorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the applicable Per Share Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of Parent that such taxes either have been paid or are not applicable.
(d) Simultaneous with the occurrence of any of the following events (i) the delivery of each Net Sales Statement (as defined in SECTION 2.03(b) below), (ii) the resolution of any dispute regarding the amount of any Contingent Payment pursuant to SECTION 2.03(d), (iii) the determination that additional amounts are payable pursuant to SECTION 2.03(h) or (iv) the resolution of any dispute regarding the amount of any setoff pursuant to SECTION 9.03, Parent shall transfer to the Paying Agent the cash necessary to pay the amount of any earned Contingent Payment, if any, without interest, and shall cause the Paying Agent to promptly distribute to the Common Holders the Contingent Payment to which such Common Holders are entitled.
(e) At any time following six months after the Initial Merger Consideration, a Contingent Payment or a payment of Excess Warrant Proceeds has been transferred to the Paying Agent, Parent shall be entitled to require the Paying Agent to deliver to it any funds which had been transferred to the Paying Agent with respect to the Initial Merger Consideration, such Contingent Payment or such payment of Excess Warrant Proceeds, as applicable, and not disbursed to holders of shares of Company Stock (including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it, if any). Thereafter, such holders shall be entitled to look to Parent (subject to abandoned property, escheat and other similar laws) only as general creditors thereof with respect to any applicable Per Share Merger Consideration that may be payable to them. Notwithstanding the foregoing, neither Parent, the Surviving Corporation nor the Paying Agent shall be liable to any holder of a share of Company Stock for any applicable Per Share Merger Consideration properly delivered in respect of such share of Company Stock to a public official pursuant to any abandoned property, escheat or other similar law.
(f) Within five Business Days of any exercise of Out-of-the-Money Warrants (as defined in SECTION 2.04(b) below), including the payment to Parent or the Surviving Corporation of the exercise price therefor, Parent shall transfer to the Paying Agent the cash necessary to pay the Excess Warrant Proceeds (as defined in SECTION 2.04(b)(ii)), if any, resulting from the exercise of such Out-of-the-Money Warrants, without interest, and shall cause the Paying Agent to promptly distribute to the Common Holders the Excess Warrant Proceeds to which such Common Holders are entitled.
(g) At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Company Stock, or Company Stock Options (as defined in SECTION 2.04(a) below) on the records of the Company. In the event of a transfer of ownership of LP Interests in a Participating Merging Partnership Company Stock prior to the Effective Time which is not registered in the transfer records of such Participating Merging Partnershipthe Company, payment of the Per Unit Share Merger Consideration Amount which such holder has the right to receive pursuant to Section 3.4 hereof may be made paid to a transferee if Person other than the Person in whose name the Certificate representing such LP Interests (or, in the case of any Participating Merging Partnership which so surrendered is a Merging Private Partnershipregistered, if the affidavit specified in Section 3.5(d) hereof and a suitable bond or indemnity) such Certificate is presented to the Payment Agent Paying Agent, accompanied by all documents required to evidence and effect such transfertransfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 3.5, each Certificate shall be deemed at From and after the Effective Time, the holders of shares of Company Stock outstanding immediately prior to the Effective Time shall cease to represent only have any rights with respect to such shares of Company Stock, except as otherwise provided herein or by applicable law, and other than the right to receive upon such Certificate's surrender of the applicable Company Stock, the Per Unit Consideration Amount which Share Merger Consideration. After the Effective Time, no dividends, interest or other distributions shall be paid to the holder of such Certificate has the right to receive pursuant to Section 3.4 hereofany unsurrendered shares of Company Stock. The Surviving Partnerships shall have the right to, and shall, take all steps necessary to ensure compliance, and shall comply, with all withholding obligations with respect to any foreign holders of LP Interests in connection with the payment of any applicable Per Unit Consideration Amount. No interest will be paid or will accrue on any Per Unit Consideration Amount upon the surrender of any Certificate.
(c) In the event that any Certificate shall have been lost, stolen or destroyed, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Unit Consideration Amount which the holder of such Certificate has the right to receive pursuant to Section 3.4 hereof; provided, however, that the Payment Agent shall (unless the Company determines otherwise) require the delivery of a suitable bond or indemnity, the form of which bond or indemnity shall be acceptable to the Company.
(d) In the case of LP Interests in the Participating Merging Partnerships which are Merging Private Partnerships, the Payment Agent shall issue in exchange therefor, upon the making of an affidavit as to the identity of each owner of LP Interests in such Merging Private Partnership by MPLP (in the case of Hearth Hollow and Midwest Properties) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (in the case of Regency North), the Per Unit Consideration Amount which the holder of LP Interests therein has the right to receive pursuant to Section 3.4 hereof.
(e) All Share Merger Consideration paid upon the surrender for exchange of LP Interests in the Participating Merging Partnerships in accordance with the terms of pursuant to this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to the surrendered Company Stock.
(h) Each of the Surviving Corporation and Parent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Common Holder or Series H Holder (collectively, the "COMPANY STOCKHOLDERS") such LP Interests; provided, however, that notwithstanding anything amounts as it is required to deduct and withhold with respect to the contrary contained in this Agreementmaking of such payment under the Internal Revenue Code of 1986, as amended (the "CODE"), or any applicable provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Partnership Corporation or Parent, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Company Stockholder in each respect of which such deduction and withholding was made by the Mergers shall continue to have an obligation following Surviving Corporation or Parent, as the Effective Time case may be.
(i) All cash amounts payable to pay distributions with a record date prior holder of Company Stock shall be rounded upward to the Effective Time which may have been declared nearest whole cent and shall be paid to the Company Stockholders by a Participating Merging Partnership on LP Interests the Paying Agent by check or wire transfer in such Participating ▇▇▇▇▇▇ Partnership immediately available funds (in accordance with the terms of this Agreement or declared prior Paying Agent's customary practice) pursuant to the date of this Agreement and, in either case, which remain unpaid at the Effective Time and (ii) to distribute written payment instructions delivered by each Company Stockholder to the former limited partners of each Participating Merging Partnership the Positive Excess Cash Balance (if any) in respect Paying Agent upon surrender of such Participating Merging Partnership Company Stockholder's Certificate.
(j) In the event any Certificate shall have been lost, stolen or destroyed, the Paying Agent, subject to such other conditions as the Paying Agent may reasonably impose (including the posting of an indemnity bond or other surety in accordance favor of Parent with Section 2.4(c) hereof. From and after respect to the Effective TimeCertificate alleged to be lost, there stolen or destroyed), shall be no further registration authorized to accept an affidavit from the record holder of transfers on the transfer books of the Surviving Partnerships of LP Interests such Certificate in the Participating Merging Partnerships which were outstanding immediately prior a form reasonably satisfactory to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Partnerships for any reason, such Certificates shall be canceled Paying Agent and exchanged as provided in this Section 3.5. If, after the Effective Time, owners of LP Interests in any Merging Private Partnerships who are identified on the affidavits described in Section 3.5(d) hereof request payment in respect upon receipt of such LP Interests from the Surviving Partnerships for any reason, the Per Unit Consideration Amount which such owner has the right to receive pursuant to Section 3.4 hereof and which has not theretofore been paid to such owner shall be delivered to such owner affidavit issue in exchange for such LP Interests.
(f) None of the Payment Agentlost, stolen or destroyed Certificates, the parties applicable Per Share Merger Consideration in respect thereof pursuant to this Agreement, the Transitory Partnerships, the Company LLCs or any of their respective affiliates shall be liable to any holder of an LP Interest in a Participating Merging Partnership for cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
(g) Any portion of the Merger Fund which remains undistributed to the holders of LP Interests in the Participating Merging Partnerships for a period of six months after the Effective Time shall be delivered to the Company, upon demand of the Company, and any such holder who has not theretofore complied with this Section 3.5 shall thereafter look only to the Company for payment of the Per Unit Consideration Amount which such holder had the right to receive pursuant to Section 3.4 hereof, and any unpaid distributions, subject to applicable escheat and other similar laws. The ▇▇▇▇▇▇ Partnerships shall pay all charges and expenses relating to the Mergers, and the Company shall reimburse the ▇▇▇▇▇▇ Partnerships, on the Closing Date and immediately prior to the distributions contemplated by Section 2.4(c) hereof, in an amount in cash equal to one-half of the amount of the charges and expenses relating to the Payment Agent (the "Merger Expense Reimbursement").
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