Procedure for Exchange. (i) Prior to the Effective Time, IBS and Info will select a bank or trust company to act as exchange agent (the "EXCHANGE AGENT") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUND") consisting of Holdco Shares and cash sufficient to permit the Exchange Agent to make full payment of the Info Merger Consideration to the holders of all of the issued and outstanding Info Shares (other than any Info Shares owned by IBS or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or Info). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following the Effective Time, Holdco will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a form to be mutually agreed upon by Info and IBS prior to Closing to each holder of issued and outstanding Info Shares or IBS Shares (other than any Info Shares or IBS Shares owned by IBS or Info) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, represented his or its Info Shares or IBS Shares against payment of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v). Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco shall promptly cause to be issued a certificate representing that number of whole Holdco Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix). No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares. (ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request. (iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request. (iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments. (v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS. (vi) Holdco shall pay all charges and expenses of the Exchange Agent. (vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares. (viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco a bond in such sum as it may direct or otherwise indemnify Holdco in a manner reasonably satisfactory to it against any claim that may be made against Holdco with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date after the Effective Time with respect to Holdco Shares or Holdco Preferred Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f). After the surrender of a certificate in accordance with this Section 2(f), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Shares into which his or its IBS Shares, Info Shares or First Avenue Shares shall have been converted into the right to receive. (ix) Holdco shall be entitled to deduct and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts as it is required to deduct and withhold with respect to such payment under the Code or any provision of state, local or foreign Tax law. Any amount so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment of the applicable Merger Consideration such amount was deducted and withheld.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Ibs Interactive Inc), Agreement and Plan of Reorganization (Infonautics Inc)
Procedure for Exchange. (i) Prior to Immediately after the Effective Time, IBS and Info (A) Parent will select a furnish to The Bank of New York, its transfer agent, or such other bank or trust company reasonably acceptable to the Company, to act as exchange agent (the "EXCHANGE AGENT") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUND") consisting of Holdco Parent Shares and cash sufficient to permit the Exchange Agent to make full payment of the Info Merger Consideration to the holders of all of the issued and outstanding Info Company Shares (other than any Info Company Shares owned by IBS Parent, Parent Subsidiary or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or InfoCompany). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following the Effective Time, Holdco (B) Parent will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a form to be mutually agreed upon by Info the Company and IBS Parent prior to Closing to each holder of issued and outstanding Info Shares or IBS Company Shares (other than any Info Shares or IBS Company Shares owned by IBS Parent, the Parent Subsidiary or Infothe Company) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, represented his or its Info Shares or IBS Company Shares against payment of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(vtoss.2(d)(v). Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco Parent shall promptly cause to be issued a certificate representing that number of whole Holdco Parent Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Parent Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco the Surviving Corporation or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Company Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDEDprovided, HOWEVERhowever, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify Holdco the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against Holdco the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date declared after the Effective Time with respect to Holdco Shares or Holdco Preferred Parent Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(fthisss.2(e). After the surrender of a certificate in accordance with this Section 2(fthisss.2(e), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Parent Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Parent Shares into which his or its IBS Shares, Info Shares or First Avenue Company Shares shall have been converted into the right to receive.
(ixii) Holdco The Company will cause its transfer agent to furnish promptly to the Parent Subsidiary a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Company Shares and lists of security positions of Company Shares held in stock depositories. The Company will furnish the Parent Subsidiary with such additional information (including, but not limited to, updated lists of holders of Company Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Parent or the Parent Subsidiary or their agents may reasonably request.
(iii) The Parent may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Parent; provided, however, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the Merger Consideration as necessary. The Parent may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and Parent will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(iv) The Parent may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of the Company shall be entitled to deduct look to the Surviving Corporation (subject to abandoned property, escheat and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts other similar laws) as it is required to deduct and withhold general creditors thereof with respect to such payment under the Code Per Share Merger Consideration and any cash payable upon surrender of their certificates.
(v) The Parent shall pay, or any provision of stateshall cause the Surviving Corporation to pay, local or foreign Tax law. Any amount so deducted all charges and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment expenses of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Viatel Inc), Merger Agreement (Destia Communications Inc)
Procedure for Exchange. (i) Prior to the Effective TimeClosing Date, IBS and Info will Parent shall select a bank or trust company to act American Stock Transfer & Trust Company as exchange agent (the "EXCHANGE AGENTExchange Agent") hereunderto act in such capacity in connection with the Merger. At or prior to As of the Effective Time, Holdco Parent shall deposit with the Exchange Agent a corpus Agent, for the benefit of the holders (the "EXCHANGE FUNDShareholders") consisting of Holdco Shares shares of Company Common Stock, for exchange in accordance with this Article II and cash sufficient the Plan of Merger certificates representing the shares of Parent Common Stock contemplated to permit the Exchange Agent to make full payment of the Info be issued as Merger Consideration to the holders of all of the issued and outstanding Info Shares (other than which shares of Parent Common Stock, together with any Info Shares owned by IBS dividends or Info) and of distributions with respect thereto, being hereinafter collectively referred to as the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or Info"Exchange Fund"). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following As soon as practicable after the Effective Time, Holdco will cause the Exchange Agent shall mail to mail each holder of record of a certificate or certificates which immediately before the Effective Time represented issued and outstanding shares of Company Common Stock (collectively, the "Old Certificates"): (i) a letter of transmittal advising such holders of the terms of the exchange effected by the Merger (with instructions for its use) in a form to and specifying how delivery shall be mutually agreed upon by Info effected, and IBS prior to Closing to each holder risk of issued loss and outstanding Info Shares or IBS Shares (other than any Info Shares or IBS Shares owned by IBS or Info) for the holder to use in surrendering the certificates which, immediately prior title to the Effective TimeOld Certificates shall pass, represented his or its Info Shares or IBS Shares against payment only upon delivery of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v). Upon surrender Old Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify); and (ii) instructions for use in effecting the surrender of such certificatesOld Certificates in exchange for certificates representing Merger Shares. Upon surrender of an Old Certificate for cancellation to the Exchange Agent, together with such a duly executed letter of transmittaltransmittal and such other documents as may be reasonably required by the Exchange Agent, duly executed and completed the holder of such Old Certificate shall be entitled to receive in accordance with the instructions thereto, Holdco shall promptly cause to be issued exchange therefor a certificate representing that number of whole Holdco Shares and a check representing the amount shares of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to Parent Common Stock which such Persons holder has the right to receive pursuant to the provisions of this Article II and the Plan of Merger, and the Old Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of shares of Company Common Stock which are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix). No interest will be paid or accrued not registered on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, records of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrenderedCompany, it shall be a condition of such payment the exchange thereof that the certificate so surrendered shall be Old Certificate representing such Company Common Stock is presented to the Exchange Agent properly endorsed or and otherwise in proper form for transfer and accompanied by all documents required to evidence and affect such transfer and by evidence that the Person requesting such payment shall pay any applicable stock transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lostpaid. Until surrendered as contemplated by this Section 2.2(a) and the Plan of Merger, stolen or destroyedeach Old Certificate shall be deemed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco a bond in such sum as it may direct or otherwise indemnify Holdco in a manner reasonably satisfactory to it against any claim that may be made against Holdco with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date on and after the Effective Time with respect to Holdco Shares or Holdco Preferred Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f). After the surrender of a certificate in accordance with this Section 2(f), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificateTime, to vote the Holdco Shares or Holdco Preferred Shares into which his or its IBS Shares, Info Shares or First Avenue Shares shall have been converted into represent only the right to receivereceive upon such surrender (x) the certificate representing shares of Parent Common Stock and (y) cash in lieu of fractional shares (as hereinafter provided) of Parent Common Stock as contemplated by this Article II and the Plan of Merger.
(ix) Holdco shall be entitled to deduct and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts as it is required to deduct and withhold with respect to such payment under the Code or any provision of state, local or foreign Tax law. Any amount so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment of the applicable Merger Consideration such amount was deducted and withheld.
Appears in 2 contracts
Sources: Merger Agreement (Boonton Electronics Corp), Merger Agreement (Wireless Telecom Group Inc)
Procedure for Exchange. (i) Prior to the Effective TimeClosing Date, IBS and Info will Parent shall select a bank or trust company to act Continental Stock Transfer, Inc. as exchange agent (the "EXCHANGE AGENTExchange Agent") hereunderto act in such capacity in connection with the Merger. At or prior to As of the Effective TimeDate, Holdco Parent shall deposit with the Exchange Agent a corpus Agent, for the benefit of the holders of shares of Company Stock (the "EXCHANGE FUNDShareholders") consisting ), for exchange in accordance with this Article II and the Plan of Holdco Shares Merger, certificates representing the shares of Parent Common Stock to be issued as Merger Consideration, if any, and cash sufficient certificates representing the Parent Warrants contemplated to permit be issued as Warrant Consideration (which shares of Parent Common Stock, together with any dividends or distributions with respect thereto, and such Parent Warrants being hereinafter collectively referred to as the "Exchange Fund"). As soon as practicable after the Effective Date, the Exchange Agent shall mail to make full payment each holder of record of a certificate or certificates which immediately before the Info Merger Consideration to the holders of all of the Effective Date represented issued and outstanding Info Shares shares of Company Stock (other than any Info Shares owned by IBS or Infocollectively, the "Old Certificates") and to each holder of the IBS Merger Consideration to the holders record of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS a certificate or Info). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following certificates which immediately before the Effective TimeDate represented outstanding Company Warrants (collectively, Holdco will cause the Exchange Agent to mail "Old Warrants"): (i) a letter of transmittal advising such holders of the terms of the exchange effected by the Merger (with instructions for its use) in a form to and specifying how delivery shall be mutually agreed upon by Info effected, and IBS prior to Closing to each holder risk of issued loss and outstanding Info Shares or IBS Shares (other than any Info Shares or IBS Shares owned by IBS or Info) for the holder to use in surrendering the certificates which, immediately prior title to the Effective TimeOld Certificates and Old Warrants shall pass, represented his or its Info Shares or IBS Shares against payment only upon delivery of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v). Upon surrender Old Certificates and Old Warrants to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify); and (ii) instructions for use in effecting the surrender of such certificatesOld Certificates and Old Warrants in exchange for certificates representing Merger Consideration and Warrant Consideration, as the case may be. Upon surrender of an Old Certificate for cancellation to the Exchange Agent, together with such a duly executed letter of transmittaltransmittal and such other documents as may be reasonably required by the Exchange Agent, duly executed and completed the holder of such Old Certificate shall be entitled to receive in accordance with the instructions thereto, Holdco shall promptly cause to be issued exchange therefor a certificate representing that number of whole Holdco Shares and a check representing the amount shares of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to Parent Common Stock which such Persons holder has the right to receive pursuant to the provisions of this Article II and the Plan of Merger, and the Old Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of shares of Company Stock which are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix). No interest will be paid or accrued not registered on the cash in lieu transfer records of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrenderedCompany, it shall be a condition of such payment the exchange thereof that the certificate so surrendered shall be Old Certificate representing such Company Stock is presented to the Exchange Agent properly endorsed or and otherwise in proper form for transfer and accompanied by all documents required to evidence and affect such transfer and by evidence that the Person requesting such payment shall pay any applicable stock transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lostpaid. Until surrendered as contemplated by this Section 2.2(a) and the Plan of Merger, stolen or destroyedeach Old Certificate shall be deemed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco a bond in such sum as it may direct or otherwise indemnify Holdco in a manner reasonably satisfactory to it against any claim that may be made against Holdco with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date on and after the Effective Time with respect to Holdco Shares or Holdco Preferred Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f). After the surrender of a certificate in accordance with this Section 2(f), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificateDate, to vote the Holdco Shares or Holdco Preferred Shares into which his or its IBS Shares, Info Shares or First Avenue Shares shall have been converted into represent only the right to receivereceive upon such surrender a certificate representing that number of shares of Parent Common Stock which such holder has the right to receive pursuant to this Article II and the Plan of Merger.
(ix) Holdco shall be entitled to deduct and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts as it is required to deduct and withhold with respect to such payment under the Code or any provision of state, local or foreign Tax law. Any amount so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment of the applicable Merger Consideration such amount was deducted and withheld.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Chem International Inc)
Procedure for Exchange. (i) Prior to Immediately after the Effective Time, IBS and Info (A) the Purchaser will select a furnish to StockTrans, Inc., its transfer agent, or such bank or trust company reasonably acceptable to Target, to act as exchange agent (the "EXCHANGE AGENTExchange Agent") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUNDExchange Fund") consisting of Holdco Purchaser Shares -------------- ------------- and cash sufficient to permit the Exchange Agent to make full payment of the Info Per Share Merger Consideration to the holders of all of the issued and outstanding Info Target Shares (other than any Info Shares Purchaser-owned by IBS or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or InfoShares). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following (B) the Effective Time, Holdco Purchaser will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a the form to be mutually agreed upon by Info the Target and IBS prior to Closing the Purchaser to each holder of issued and outstanding Info Shares or IBS Target Shares (other than any Info Shares or IBS Shares Purchaser-owned by IBS or InfoShares) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, which represented his or its Info Shares or IBS Target Shares against payment of the applicable Per Share Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v)Consideration. Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco the Surviving Corporation shall promptly cause to be issued a certificate representing that number of whole Holdco Purchaser Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Purchaser Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco the Surviving Corporation or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Per Share Merger Consideration deliverable in respect thereof; PROVIDEDprovided, HOWEVERhowever, the -------- ------- Person to whom such the Per Share Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify Holdco the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against Holdco the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date declared after the Effective Time with respect to Holdco Shares or Holdco Preferred Purchaser Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f(S)2(e). After the surrender of a certificate in accordance with this Section 2(f(S)2(e), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Purchaser Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Purchaser Shares into which his or its IBS Shares, Info Shares or First Avenue Target Shares shall have been converted into the right to receiveconverted.
(ixii) Holdco The Target will cause its transfer agent to furnish promptly to the Purchaser Subsidiary a list, as of a recent date, of the record holders of Target Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Target Shares and lists of security positions of Target Shares held in stock depositories. The Target will furnish the Purchaser Subsidiary with such additional information (including, but not limited to, updated lists of holders of Target Shares and their addresses, mailing labels and lists of security positions) and such other assistance as the Purchaser or the Purchaser Subsidiary or their agents may reasonably request.
(iii) The Purchaser may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by the Purchaser; provided, however, that the terms and conditions of the ----------------- investments shall be such as to permit the Exchange Agent to make prompt payment of the Per Share Merger Consideration as necessary. The Purchaser may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and the Purchaser will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(iv) The Purchaser may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of the Target shall be entitled to deduct look to the Surviving Corporation (subject to abandoned property, escheat and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts other similar laws) as it is required to deduct and withhold general creditors thereof with respect to such payment under the Code cash payable upon surrender of their certificates.
(v) The Purchaser shall pay, or any provision of stateshall cause the Surviving Corporation to pay, local or foreign Tax law. Any amount so deducted all charges and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment expenses of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Primus Telecommunications Group Inc)
Procedure for Exchange. (a) Immediately after the Cortelco Effective Time, CIDCO Effective Time, and SLL Effective Time, as applicable, GraphOn shall deposit with American Stock Transfer & Trust Company, or such other exchange agent selected by GraphOn and reasonably acceptable to the Affiliated Companies, (the "Exchange Agent") for the benefit of the holders of Affiliated Company Shares, (i) Prior to certificates representing the Effective TimeGraphOn Shares that make up the Merger Shares, IBS and Info will select a bank or trust company to act calculated as exchange agent follows: the sum of (x) the "EXCHANGE AGENT") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUND") consisting of Holdco Shares and cash sufficient to permit the Exchange Agent to make full payment product of the Info Merger Consideration to Cortelco Conversion Ratio multiplied by the holders number of all of the issued and outstanding Info Cortelco Shares (other than any Info Shares owned by IBS or InfoDissenting Shares) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS immediately prior to the Cortelco Effective Time, (y) the product of the CIDCO Conversion Ratio multiplied by the number of CIDCO Shares (other than any IBS Shares owned by IBS or Info). Cash utilized Dissenting Shares) issued and outstanding immediately prior to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following the CIDCO Effective Time, Holdco will and (z) the product of the SLL Conversion Ratio multiplied by the number of SLL Shares (other than any Dissenting Shares) issued and outstanding immediately prior to the SLL Effective Time, and, (ii) any dividends or other distributions with respect to GraphOn Shares with a record date at or after the Cortelco Effective Time, CIDCO Effective Time, and SLL Effective Time, as applicable, (such certificates for GraphOn Shares, together with the amount of any dividends or other distributions payable with respect thereto, are referred to as the "Exchange Fund") in exchange for Affiliated Company Shares outstanding immediately prior to the Cortelco Effective Time, CIDCO Effective Time, and SLL Effective Time, respectively, and upon due surrender of certificates representing the Affiliated Company Shares pursuant to this Article II.
(b) Promptly after the Cortelco Effective Date, CIDCO Effective Date, and SLL Effective Date, respectively, GraphOn shall cause the Exchange Agent to mail to each record holder of Affiliated Company Shares (other than Dissenting Shares)
(i) a letter of transmittal specifying that delivery shall be effected, and risk of loss and title to the certificates representing Affiliated Company Shares shall pass, only upon delivery of such certificates (with or affidavits of loss in lieu thereof) to the Exchange Agent, such letter of transmittal to be in such form and have such other provisions as GraphOn and the Exchange Agent may reasonably agree, and (ii) instructions for its use) in a form to be mutually agreed upon by Info and IBS prior to Closing to each holder of issued and outstanding Info Shares or IBS Shares (other than any Info Shares or IBS Shares owned by IBS or Info) for the holder to use in surrendering effecting the surrender of the certificates which, immediately prior to the Effective Time, represented his or its Info representing Affiliated Company Shares or IBS in exchange for (A) certificates representing GraphOn Shares against payment of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v)and (B) any unpaid dividends and other distributions thereon. Upon surrender of a certificate representing Affiliated Company Shares for cancellation to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed executed, the holder of such certificate shall be entitled to receive in accordance with the instructions thereto, Holdco shall promptly cause to be issued exchange therefor (x) a certificate representing that number of whole Holdco GraphOn Shares that such holder is entitled to receive pursuant to this Article II, and (y) a check representing in the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, (after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings) of any unpaid non-stock dividends and any other dividends or other distributions that such holder has the right to receive pursuant to the provisions of this Article II, and the certificate representing the Affiliated Company Shares will be canceled. No interest will be paid or accrued on any amounts payable upon due surrender of the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco certificates representing Affiliated Company Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as . In the event of a recent date, transfer of ownership of Affiliated Company Shares that is not registered in the transfer records of the record holders appropriate Affiliated Company, a certificate representing the proper number of Info Shares and their addressesGraphOn Shares, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco together with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent a check for any cash to furnish promptly to Holdco a list, as of a recent date, be paid upon due surrender of the record holders of IBS Shares and their addresses, as well as mailing labels containing certificate representing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investmentsAffiliated Company Shares, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco other dividends or distributions in respect thereof may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior issued and/or paid to such escheat being required under applicable law and transferee if the certificate formerly representing such Affiliated Company Shares is presented to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver accompanied by all documents required to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, evidence and effect such transfer and to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of evidence that any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares applicable stock transfer taxes have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco paid. If any certificate for GraphOn Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include in a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person name other than the registered holder of that in which the certificate surrenderedsurrendered for exchange therefor is registered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and exchange that the Person requesting such payment exchange shall pay any transfer or other taxes required by reason of the payment to issuance of certificates for GraphOn Shares in a Person name other than that of the registered holder of the certificate surrendered surrendered, or shall establish to the reasonable satisfaction of Holdco GraphOn or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable.
(c) GraphOn shall not pay any dividend or make any distribution on GraphOn Shares, with a record date at or after the Cortelco Effective Time, CIDCO Effective Time, or SLL Effective Time, to any record holder of Affiliated Company Shares unless and until the holder surrenders for exchange the stock certificate or certificates that formerly represented the holder's Affiliated Company Shares. GraphOn instead shall pay the dividend or make the distribution to the Exchange Agent in trust for the benefit of the holder pending the surrender and exchange. No holder of Affiliated Company Shares shall be entitled to any interest or earnings on the dividend or distribution held in trust by the Exchange Agent pending receipt thereof by the holder upon surrender for exchange of the Affiliated Company Share certificates.
(d) In the event any certificate representing IBS Shares, Info Shares or First Avenue Affiliated Company Shares shall have been lost, stolen stolen, or destroyed, upon the making of an affidavit of that such fact by the Person claiming such certificate to be has been lost, stolen stolen, or destroyed, Holdco will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVERand if required by GraphOn, the posting by such Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco of a bond in such sum customary amount as it may direct or otherwise indemnify Holdco in a manner reasonably satisfactory to it indemnity against any claim that may be made against Holdco it with respect to such certificate, the Exchange Agent will issue in exchange for such documentation of the lost, stolen, or destroyed certificate, the GraphOn Shares and any unpaid dividends or other distributions in respect thereof.
(e) GraphOn may terminate the Exchange Fund and cause the Exchange Agent to return any GraphOn Shares and dividends and distributions thereon remaining unclaimed 180 days after the Closing Date, and thereafter each remaining record holder of Affiliated Company Shares who has not surrendered for exchange the certificates representing the Affiliated Company Shares shall be entitled to look to GraphOn (subject to abandoned property, escheat, and other similar Laws) as a general creditor thereof with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date after the Effective Time with respect to Holdco Shares or Holdco Preferred GraphOn Shares and payable dividends and distributions thereon to which the holders holder is entitled upon surrendering for exchange the stock certificate or certificates that formerly represented the holder's Affiliated Company Shares. Notwithstanding the foregoing, none of record thereof GraphOn, the Cortelco Surviving Corporation, CIDCO Surviving Corporation, SLL Surviving Corporation, or the Exchange Agent shall be paid liable to the any former holder of Affiliated Company Shares for any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f). After the surrender of amounts properly delivered to a certificate in accordance with this Section 2(f)public official pursuant to applicable abandoned property, the record holder thereof shall be entitled to receive any such dividends escheat, or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Shares into which his or its IBS Shares, Info Shares or First Avenue Shares shall have been converted into the right to receivesimilar Laws.
(ixf) Holdco GraphOn shall be entitled to deduct pay all fees, expenses, and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts as it is required to deduct and withhold with respect to such payment under the Code or any provision of state, local or foreign Tax law. Any amount so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment other charges of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Graphon Corp/De)
Procedure for Exchange. (i) Prior At or prior to the Effective Time, IBS and Info (A) Acquiror will select a furnish to Equiserve, its transfer agent, or such other bank or trust company reasonably acceptable to the Company, to act as exchange agent (the "EXCHANGE AGENT") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUND") consisting of Holdco Acquiror Shares and cash sufficient to permit the Exchange Agent to make full payment of the Info Merger Consideration to the holders of all of the issued and outstanding Info Company Shares (other than any Info Company Shares owned by IBS Acquiror or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or InfoCompany). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following the Effective Time, Holdco (B) Acquiror will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a form to be mutually agreed upon by Info the Company and IBS Acquiror prior to Closing to each holder of issued and outstanding Info Shares or IBS Company Shares (other than any Info Shares or IBS Company Shares owned by IBS Acquiror or Infothe Company) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, represented his or its Info Shares or IBS Company Shares against payment of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(vss.2(d)(v). Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco Acquiror shall promptly cause to be issued a certificate representing that number of whole Holdco Acquiror Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Acquiror Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco the Surviving Corporation or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Company Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify Holdco the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against Holdco the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date declared after the Effective Time with respect to Holdco Shares or Holdco Preferred Acquiror Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(fthisss.2(e). After the surrender of a certificate in accordance with this Section 2(fss.2(e), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Acquiror Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Acquiror Shares into which his or its IBS Shares, Info Shares or First Avenue Company Shares shall have been converted into the right to receive.
(ixii) Holdco The Company will cause its transfer agent to furnish promptly to Acquiror a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Company Shares and lists of security positions of Company Shares held in stock depositories. The Company will furnish Acquiror with such additional information (including, but not limited to, updated lists of holders of Company Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Acquiror or its agents may reasonably request.
(iii) Acquiror may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Acquiror; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the Merger Consideration as necessary. Acquiror may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and Acquiror will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(iv) Acquiror may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of the Company shall be entitled to deduct look to the Surviving Corporation (subject to abandoned property, escheat and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts other similar laws) as it is required to deduct and withhold general creditors thereof with respect to such payment under the Code Merger Consideration and any cash payable upon surrender of their certificates.
(v) Acquiror shall pay, or any provision of stateshall cause the Surviving Corporation to pay, local or foreign Tax law. Any amount so deducted all charges and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment expenses of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Netrix Corp)
Procedure for Exchange. (i) Prior At or prior to the Effective Time, IBS and Info (A) Acquiror will select a furnish to Equiserve, its transfer agent, or such other bank or trust company reasonably acceptable to the Company, to act as exchange agent (the "EXCHANGE AGENT") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUND") consisting of Holdco Acquiror Shares and cash sufficient to permit the Exchange Agent to make full payment of the Info Merger Consideration to the holders of all of the issued and outstanding Info Company Shares (other than any Info Company Shares owned by IBS Acquiror or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or InfoCompany). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following the Effective Time, Holdco (B) Acquiror will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a form to be mutually agreed upon by Info the Company and IBS Acquiror prior to Closing to each holder of issued and outstanding Info Shares or IBS Company Shares (other than any Info Shares or IBS Company Shares owned by IBS Acquiror or Infothe Company) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, represented his or its Info Shares or IBS Company Shares against payment of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(vtoss.2(d)(v). Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco Acquiror shall promptly cause to be issued a certificate representing that number of whole Holdco Acquiror Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Acquiror Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco the Surviving Corporation or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Company Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify Holdco the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against Holdco the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date declared after the Effective Time with respect to Holdco Shares or Holdco Preferred Acquiror Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(fss.2(e). After the surrender of a certificate in accordance with this Section 2(fss.2(e), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Acquiror Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Acquiror Shares into which his or its IBS Shares, Info Shares or First Avenue Company Shares shall have been converted into the right to receive.
(ixii) Holdco The Company will cause its transfer agent to furnish promptly to Acquiror a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Company Shares and lists of security positions of Company Shares held in stock depositories. The Company will furnish Acquiror with such additional information (including, but not limited to, updated lists of holders of Company Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Acquiror or its agents may reasonably request.
(iii) Acquiror may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Acquiror; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the Merger Consideration as necessary. Acquiror may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and Acquiror will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(iv) Acquiror may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of the Company shall be entitled to deduct look to the Surviving Corporation (subject to abandoned property, escheat and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts other similar laws) as it is required to deduct and withhold general creditors thereof with respect to such payment under the Code Merger Consideration and any cash payable upon surrender of their certificates.
(v) Acquiror shall pay, or any provision of stateshall cause the Surviving Corporation to pay, local or foreign Tax law. Any amount so deducted all charges and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment expenses of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Netrix Corp)
Procedure for Exchange. (i) Prior to Immediately after the Effective Time, IBS and Info (A) the Purchaser will select a furnish to StockTrans, Inc., its transfer agent, or such bank or trust company reasonably acceptable to Target, to act as exchange agent (the "EXCHANGE AGENT") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUND") consisting of Holdco Purchaser Shares and cash sufficient to permit the Exchange Agent to make full payment of the Info Per Share Merger Consideration to the holders of all of the issued and outstanding Info Target Shares (other than any Info Shares Purchaser-owned by IBS or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or InfoShares). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following (B) the Effective Time, Holdco Purchaser will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a the form to be mutually agreed upon by Info the Target and IBS prior to Closing the Purchaser to each holder of issued and outstanding Info Shares or IBS Target Shares (other than any Info Shares or IBS Shares Purchaser-owned by IBS or InfoShares) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, which represented his or its Info Shares or IBS Target Shares against payment of the applicable Per Share Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v)Consideration. Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco the Surviving Corporation shall promptly cause to be issued a certificate representing that number of whole Holdco Purchaser Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositoriesPurchaser shares. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco the Surviving Corporation or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Per Share Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such the Per Share Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify Holdco the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against Holdco the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date declared after the Effective Time with respect to Holdco Shares or Holdco Preferred Purchaser Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f2(e). After the surrender of a certificate in accordance with this Section 2(f2(e), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Purchaser Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Purchaser Shares into which his or its IBS Shares, Info Shares or First Avenue Target Shares shall have been converted into the right to receiveconverted.
(ixii) Holdco The Target will cause its transfer agent to furnish promptly to the Purchaser Subsidiary a list, as of a recent date, of the record holders of Target Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Target Shares and lists of security positions of Target Shares held in stock depositories. The Target will furnish the Purchaser Subsidiary with such additional information (including, but not limited to, updated lists of holders of Target Shares and their addresses, mailing labels and lists of security positions) and such other assistance as the Purchaser or the Purchaser Subsidiary or their agents may reasonably request.
(iii) The Purchaser may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by the Purchaser; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the Per Share Merger Consideration as necessary. The Purchaser may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and the Purchaser will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(iv) The Purchaser may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of the Target shall be entitled to deduct look to the Surviving Corporation (subject to abandoned property, escheat and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts other similar laws) as it is required to deduct and withhold general creditors thereof with respect to such payment under the Code cash payable upon surrender of their certificates.
(v) The Purchaser shall pay, or any provision of stateshall cause the Surviving Corporation to pay, local or foreign Tax law. Any amount so deducted all charges and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment expenses of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 1 contract
Procedure for Exchange. (i) Prior to the Effective TimeClosing Date, IBS and Info will Parent shall select a bank or trust company to act as an exchange agent (the "EXCHANGE AGENTExchange Agent") hereunderreasonably satisfactory to Company to act in such capacity in connection with the Merger. At or prior to As of the Effective Time, Holdco Parent shall deposit with the Exchange Agent a corpus Agent, for the benefit of the holders of shares of Company Common Stock (the "EXCHANGE FUNDStockholders") consisting ), for exchange in accordance with this Article II and the Plan of Holdco Shares and cash sufficient Merger, certificates representing the shares of Parent Common Stock contemplated to permit the Exchange Agent to make full payment of the Info be issued as Merger Consideration to the holders of all of the issued and outstanding Info Shares (other than which shares of Parent Common Stock, together with any Info Shares owned by IBS dividends or Info) and of distributions with respect thereto, being hereinafter referred to as the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or Info"Exchange Fund"). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following As soon as practicable after the Effective Time but in no event later than twenty (20) Business Days after the Effective Time, Holdco will cause the Exchange Agent shall mail to mail each holder of record of a certificate or certificates which immediately before the Effective Time represented issued and outstanding shares of Company Common Stock (collectively, the "Old Certificates"): (i) a letter of transmittal advising such holders of the terms of the exchange effected by the Merger (with instructions for its use) in a form to and specifying how delivery shall be mutually agreed upon by Info effected, and IBS prior to Closing to each holder risk of issued loss and outstanding Info Shares or IBS Shares (other than any Info Shares or IBS Shares owned by IBS or Info) for the holder to use in surrendering the certificates which, immediately prior title to the Effective TimeOld Certificates shall pass, represented his or its Info Shares or IBS Shares against payment only upon delivery of the applicable Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v). Upon surrender Old Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify); and (ii) instructions for use in effecting the surrender of such certificatesOld Certificates in exchange for certificates representing Merger Shares. Upon surrender of an Old Certificate for cancellation to the Exchange Agent, together with such a duly executed letter of transmittaltransmittal and such other documents as may be reasonably required by the Exchange Agent, duly executed and completed the holder of such Old Certificate shall be entitled to receive in accordance with the instructions thereto, Holdco shall promptly cause to be issued exchange therefor a certificate representing that number of whole Holdco Shares and a check representing the amount shares of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to Parent Common Stock which such Persons holder has the right to receive pursuant to the provisions of this Article II and the Plan of Merger and the Old Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of shares of Company Common Stock which are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix). No interest will be paid or accrued not registered on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, records of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrenderedCompany, it shall be a condition of such payment the exchange thereof that the certificate so surrendered shall be Old Certificate representing such Company Common Stock is presented to the Exchange Agent properly endorsed or and otherwise in proper form for transfer and accompanied by all documents required to evidence and effect such transfer and by evidence that the Person requesting such payment shall pay any applicable stock transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lostpaid. Until surrendered as contemplated by this Section 2.2(a) and the Plan of Merger, stolen or destroyedeach Old Certificate shall be deemed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; PROVIDED, HOWEVER, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco a bond in such sum as it may direct or otherwise indemnify Holdco in a manner reasonably satisfactory to it against any claim that may be made against Holdco with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date on and after the Effective Time with respect to Holdco Shares or Holdco Preferred Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f). After the surrender of a certificate in accordance with this Section 2(f), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificateTime, to vote the Holdco Shares or Holdco Preferred Shares into which his or its IBS Shares, Info Shares or First Avenue Shares shall have been converted into represent only the right to receivereceive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of fractional shares (as hereinafter provided) of Parent Common Stock as contemplated by this Article II and the Plan of Merger.
(ix) Holdco shall be entitled to deduct and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts as it is required to deduct and withhold with respect to such payment under the Code or any provision of state, local or foreign Tax law. Any amount so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment of the applicable Merger Consideration such amount was deducted and withheld.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Electro Catheter Corp)
Procedure for Exchange. (i) Prior to Immediately after the Effective Time, IBS and Info (A) the Purchaser will select a furnish to StockTrans, Inc., its transfer agent, or such bank or trust company reasonably acceptable to Target, to act as exchange agent (the "EXCHANGE AGENTExchange -------- Agent") hereunder. At or prior to the Effective Time, Holdco shall deposit with the Exchange Agent a corpus (the "EXCHANGE FUNDExchange Fund") consisting of Holdco Purchaser Shares and cash ----- ------------- sufficient to permit the Exchange Agent to make full payment of the Info Per Share Merger Consideration to the holders of all of the issued and outstanding Info Target Shares (other than any Info Shares Purchaser-owned by IBS or Info) and of the IBS Merger Consideration to the holders of all of the issued and outstanding IBS Shares (other than any IBS Shares owned by IBS or InfoShares). Cash utilized to pay any Info Merger Consideration will be provided by Info, and cash utilized to pay any IBS Merger Consideration will be provided by IBS. Promptly following (B) the Effective Time, Holdco Purchaser will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a the form to be mutually agreed upon by Info the Target and IBS prior to Closing the Purchaser to each holder of issued and outstanding Info Shares or IBS Target Shares (other than any Info Shares or IBS Shares Purchaser- owned by IBS or InfoShares) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, which represented his or its Info Shares or IBS Target Shares against payment of the applicable Per Share Merger Consideration to which such holder is entitled pursuant to Section 2(e)(v)Consideration. Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Holdco the Surviving Corporation shall promptly cause to be issued a certificate representing that number of whole Holdco Purchaser Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix)withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Purchaser Shares.
(ii) Info will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of Info Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Info Shares and lists of security positions of Info Shares held in stock depositories. Info will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of Info Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iii) IBS will cause its transfer agent to furnish promptly to Holdco a list, as of a recent date, of the record holders of IBS Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of IBS Shares and lists of security positions of IBS Shares held in stock depositories. IBS will furnish Holdco with such additional information (including, but not limited to, updated lists of holders of IBS Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Holdco or its agents may reasonably request.
(iv) Holdco may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by Holdco; PROVIDED, HOWEVER, that the terms and conditions of the investments shall be such as to permit the Exchange Agent to make prompt payment of the applicable Merger Consideration as necessary. Holdco may cause the Exchange Agent to pay over to Holdco any net earnings with respect to the investments, and Holdco will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(v) Holdco may cause the Exchange Agent to pay over to Holdco any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of Info and IBS shall be entitled to look to Holdco (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the applicable Merger Consideration and any cash payable upon surrender of their certificates. To the extent that property would escheat under applicable law, it shall, immediately prior to such escheat being required under applicable law and to the extent permissible under applicable law, become the property of Holdco, free and clear of all claims of former stockholders of Info or IBS.
(vi) Holdco shall pay all charges and expenses of the Exchange Agent.
(vii) At or as soon as practicable following the Effective Time, Holdco shall deliver to each First Avenue Stockholder the number of Holdco Shares or Holdco Preferred Shares, as the case may be, to which such First Avenue Stockholder is entitled pursuant to Section 2(e)(v)(C) and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any required tax withholdings as provided in Section 2(f)(ix), on the condition that such First Avenue Stockholder shall have surrendered to Holdco certificates representing the First Avenue Common Shares or First Avenue Preferred Shares converted in the FAV Merger and shall have delivered to Holdco a certificate in form and substance reasonably satisfactory to Holdco to the effect that such First Avenue Stockholder (A) is the owner of such First Avenue Common Shares or First Avenue Preferred Shares, as the case may be, free and clear of liens, charges and encumbrances, (B) is an "accredited investor" (as defined in Rule 501 promulgated under the Securities Act or a "qualified institutional buyer" (as defined in Rule 144A promulgated under the Securities Act) and (C) acknowledges that the Holdco Shares or Holdco Preferred Shares into which such First Avenue Stockholder's First Avenue Shares have been converted have not been registered under the Securities Act and cannot be transferred in the absence of an effective registration statement with respect to such Holdco Shares or Holdco Preferred Shares under the Securities Act or an exemption from registration. It is acknowledged that the certificates for Holdco Shares and Holdco Preferred Shares to be issued to each First Avenue Stockholder shall include a legend to the effect set forth in clause (C) above. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Holdco Shares or Holdco Preferred Shares.
(viii) If payment is to be made pursuant to Section 2(f)(i) to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Holdco the Surviving Corporation or (in the case of payment to be made from the Exchange Fund) the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing IBS Shares, Info Shares or First Avenue Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, Holdco the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Per Share Merger Consideration deliverable in respect thereof; PROVIDEDprovided, HOWEVERhowever, the -------- ------- Person to whom such the Per Share Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Holdco the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify Holdco the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against Holdco the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions having a record date declared after the Effective Time with respect to Holdco Shares or Holdco Preferred Purchaser Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof shall surrender such certificate in accordance with this Section 2(f(S)2(e). After the surrender of a certificate in accordance with this Section 2(f(S)2(e), the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the Holdco Shares or Holdco Preferred Purchaser Shares represented by such certificate. No holder of an unsurrendered certificate shall be entitled, until the surrender of such certificate, to vote the Holdco Shares or Holdco Preferred Purchaser Shares into which his or its IBS Shares, Info Shares or First Avenue Target Shares shall have been converted into the right to receiveconverted.
(ixii) Holdco The Target will cause its transfer agent to furnish promptly to the Purchaser Subsidiary a list, as of a recent date, of the record holders of Target Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Target Shares and lists of security positions of Target Shares held in stock depositories. The Target will furnish the Purchaser Subsidiary with such additional information (including, but not limited to, updated lists of holders of Target Shares and their addresses, mailing labels and lists of security positions) and such other assistance as the Purchaser or the Purchaser Subsidiary or their agents may reasonably request.
(iii) The Purchaser may cause the Exchange Agent to invest the cash included in the Exchange Fund in one or more investments selected by the Purchaser; provided, however, that the terms and conditions of the -------- ------- investments shall be such as to permit the Exchange Agent to make prompt payment of the Per Share Merger Consideration as necessary. The Purchaser may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and the Purchaser will replace promptly any portion of the Exchange Fund which the Exchange Agent loses through investments.
(iv) The Purchaser may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders of the Target shall be entitled to deduct look to the Surviving Corporation (subject to abandoned property, escheat and withhold from the applicable Merger Consideration otherwise payable to any Info Stockholder, IBS Stockholder or First Avenue Stockholder such amounts other similar laws) as it is required to deduct and withhold general creditors thereof with respect to such payment under the Code cash payable upon surrender of their certificates.
(v) The Purchaser shall pay, or any provision of stateshall cause the Surviving Corporation to pay, local or foreign Tax law. Any amount so deducted all charges and withheld shall be treated for all purposes of this Agreement as having been paid to the Info Stockholder, IBS Stockholder or First Avenue Stockholder from whose payment expenses of the applicable Merger Consideration such amount was deducted and withheldExchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Primus Telecommunications Group Inc)